How should HR react to 'inappropriate' employee behaviour?

The Fair Work Commission (FWC) has recently decided that procedural fairness trumps allegations of inappropriate behavior and neglect of duties, backed by evidence.

The case dealt with a dismissed employee whose employment was terminated because he sent inappropriate messages to a colleague, neglected his duties and promoted his own business during work hours.

The employer delivers specialist building services that are part of a diverse business providing construction, building and support services. The employee was part of the national OHS team as the Victorian Manager in the insurance building services business. His role required site visits to internally held companies.

The employee was dismissed due to inappropriate behavior, specifically an allegation that he sent anonymous text messages that suggested his colleague’s wife was having an affair. The colleague said that the messages were sent “with intent to cause distress, and to damage [his] relationship [with his wife.]”  The colleague also said he felt like they were “being stalked.”

Another allegation stated that the employee did not perform his duties during work hours and promoted his company while dealing with the employer’s clients.

In a meeting called by his employer to air concerns, the employee denied he sent the text messages and denied the company he had promoted by email was his own.

Before the FWC, the employee argued that his role required him to work “80% away from the office and most often from his vehicle.”

The employer then gave evidence that it hired a private investigator who had reviewed the payphones and CCTV footage and traced the anonymous messages to the employee. It also said the private investigator, while following the employee for over two days, said the latter was “neglectful.”

The employer further argued that the employee had sent an email to its business partners promoting a company registered in the employee’s name, breaching a specific term in his employment contract.

The FWC accepted evidence that linked the employee to the inappropriate text messages that suggested that his colleague’s wife was having an affair.

In its decision, the FWC found the employee’s conduct was wilful and inconsistent with his obligations and incompatible with his duty.

It also observed his contract of employment contained an express obligation to devote time and attention during work hours to perform duties exclusively for the business.

The importance of procedural fairness

Despite the accepted allegations against the employee, the FWC still ruled the dismissal was unreasonable, saying that “while finding a valid reason for the dismissal, the employee was not given a genuine opportunity to respond to the allegations and evidence against him.”

The FWC noted that, given the employer's size, it “could have provided a more structured discussion and dismissal process.” Thus, the FWC ruled that the dismissal was “procedurally unfair” and ordered compensation of one week's wages.

The decision was handed down on February 16.