Is calling your husband's ex-mistress while at work a firing offence?

The Fair Work Commission has handed a partial vindication to a police employee who contacted her husband’s former mistress during work hours. The employer had also alleged that the employee used “inappropriate access” to a police database to obtain the phone number and was interfering in an investigation.

The employer argued that the worker’s conduct was contrary to the professional and ethical standards in the workplace.

But the FWC in its decision rejected some of the allegations and ruled on the basis of the phone call alone, leaving the question of whether an employee can be dismissed for making a phone call.

Background of the case

The employee worked as a fingerprint expert in the Forensic Services Department of the Victoria Police.

In January 2022, the employer dismissed the forensic officer. She had confessed that she made a phone call in 2019 to a Victoria Police colleague with whom her husband had recently admitted to having an affair. During the call, the employee introduced herself as a representative of The Age newspaper, according to the FWC ruling.

The employer alleged that the worker engaged in conduct that breached the standards required as an employee of the Victoria Police by “inappropriately accessing and/or using Victoria Police information and/or equipment for reasons other than approved official purposes while at work.”

Secondly, the worker violated the standards expected of her by inappropriately contacting her husband’s ex-partner during her rostered shift. Thirdly, the employee was accused of interfering in an investigation of her husband, himself a ranking police officer, because the former mistress was at the time a witness in the investigation of the husband.

The employee denied the first and third allegations and submitted that while her conduct warranted sanction, the decision to dismiss her was disproportionate to the misconduct.

She apologized for her behaviour, acknowledged her wrongdoing, and agreed not to contact her husband’s ex-partner should she be reinstated.

The FWC’s findings

Ultimately, the Commission concluded that the worker was unfairly dismissed from her employment with the Victoria Police.

The FWC was not satisfied that the worker improperly gained access to her colleague’s direct phone number at work by accessing the Victoria Police’s information system.

In relation to the purpose of the call, the FWC also said that “on the balance of probabilities,” the worker’s motive was to confront the colleague about the affair, contrary to the employer’s contention that the worker called to “solicit information” in a “deceitful manner” concerning her husband’s court proceedings.

Moreover, while the Commission accepted that the worker’s conduct was wrong and constituted a breach of her professional and ethical values in employment, the dismissal was disproportionate to the misconduct and unreasonable, considering the economic impact it had on the worker.

The FWC has ordered the worker’s reinstatement to her former position, with continuity of employment, and partial compensation for loss of income.

The Victoria Police recently appealed the decision, and the FWC has issued a ‘stay’ on the reinstatement until the appeal is heard.