A Western Australian university is likely to be hit with an unfair dismissal case after sacking an employee who circulated a series of memes poking fun at his employer.
The University of Western Australia fired senior administrative officer James Mitton from its school of indigenous studies in February after discovering he had shared a series of edited pictures with a small circle of colleagues.
Mitton sent the photo-shopped memes in response to an announcement by the institution’s vice chancellor, Paul Johnson, who informed staff only weeks before Christmas that 300 of them would lose their jobs in the new year.
Following the announcement, Mitton shared a series of edited pictures with three of his colleagues, one which had been created in greeting card format, with the Grinch-like message: “Season’s Greetings, I hope you’re employable elsewhere in 2016.”
Another meme featured the institution’s vice-chancellor posing in front of a pit of fire with visible devil’s fangs, while the third depicted his face superimposed over a movie poster with the tagline: “Pledged to crush.”
The University’s HR department suspended Mitton without pay on February 9 over the emails, alleging “serious misconduct”.
In its letter, the institution’s HR department cited “inappropriate and disrespectful photos” and said that his referring to the university as “evil” was part of his alleged “serious misconduct”.
However, HR said Mitton’s reaction to this letter was what ultimately led to his dismissal on March 3, as his written response had been “recalcitrant”, used “disrespectful language” and constituted another example of “serious misconduct”.
Mitton has hit back, claiming the University failed to conduct a proper investigation into the alleged misconduct and thus did not follow procedural fairness when managing his dismissal.
The employee has engaged the National Tertiary Education Union to help him fight his termination and News.com.au reports that an unfair dismissal case will be filed with the
Fair Work Commission,
However, the employer will need to prove that it acted proportionately when terminating the employee, if it wants to come out on top of a FWC hearing, says employment lawyer Benjamin Marshall from Arnold Bloch Leibler.
While making critical comments about your employer may be grounds for summary dismissal, Marshall says employers and HR professionals need to conduct proper workplace investigations before deciding to terminate an employee.
“Serious or gross misconduct is a very high threshold to meet, requiring a careful balancing of the circumstances to determine the appropriate response given the severity of the misconduct,” Marshall told HC Online.
“Establishing gross or serious misconduct (the terms are used interchangeably) usually requires conduct by the employee that is fundamentally inconsistent with the continuation of the employment,” he says.
“It involves questions of degree as to whether the specific conduct is sufficiently serious to warrant immediate termination.”
Marshall says the real question is whether the University acted proportionately in sacking Mitton, given the severity of his conduct.
“Is Mitton’s conduct, viewed as whole against his obligations, so serious that the University could not reasonably be expected to continue to employ him?” Marshall says.
He says that as an employee, Mitton owes various duties to his employer regarding appropriate standards of conduct.
“These duties may extend to obligations not to distribute offensive material to other employees or through the University’s network, not to bully or disparage other staff (including the Vice Chancellor) or not to undermine the difficult message the University was delivering at the time about job cuts,” Marshall says.
"As an academic, there may be an implied term of his contract of employment that make free comment in relation to his area of learning, but that is unlikely to be relevant here."
While there is no general right to freedom of speech under Australian law, Marshall says there are rights to make complaints in relation to your employment.
However, he says itis not clear that Mitton’s conduct constitutes a “complaint”.
““Mitton’s “speech” in the form of a meme, appears to do little more than ridicule the Vice Chancellor and suggest he was evil,” Marshall says.
“As an academic, there may be an implied term of his contract of employment that make free comment in relation to his area of learning, but that is unlikely to be relevant here.”
Marshall says the critical point is for the employer to show that it has acted proportionately, and while there is no general requirement for employers to appoint an independent investigator, HR must conduct appropriate investigations before deciding to terminate.
