FWC rules poor practices undermined employer's case against worker
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a 16-year-old casual worker claimed he was unjustly terminated for allegedly accessing and sharing confidential company emails.
The worker strongly denied accessing the emails without authorisation, arguing that another employee had forwarded the confidential communication to him. He maintained that after receiving the email, which discussed plans to phase out his employment, he merely shared it with a colleague seeking advice.
The case was further complicated by the worker's mother, who was employed at the same workplace and eventually claimed responsibility for accessing the emails after her son had already been dismissed.
The dispute began on 16 December 2024 at a retail store in Miranda, New South Wales. An operations manager sent an email to the company's chief executive officer and general manager expressing concerns about the worker's behaviour, including allegations he had implied another employee was involved in a "pattern of shortages" related to a $10 till discrepancy.
In this same email, the operations manager outlined plans to reduce the worker's hours: "As we approach the quieter period, I plan to phase him out of the roster entirely. Given his casual status, this transition is straightforward."
On 17 December 2024, this confidential email was somehow forwarded to the worker's personal email account. The worker then shared its contents with another colleague, which the employer documented. This led to a notice to show cause being issued, alleging unauthorised access to confidential emails.
The worker's mother also worked at the store. Three days after her son's dismissal on 20 December 2024, she emailed the general manager claiming responsibility:
"At [a former employee's] suggestion I accessed [the operations manager's] email account using the same password as Miranda account [REDACTED] to watch out for [the worker] and myself. Upon reading [the operations manager's] email, I forwarded it to [the worker]..."
The FWC noted significant inconsistencies in the worker's testimony. He initially claimed he discovered his mother's involvement after seeing her statement, but later changed his evidence to say she told him immediately after his dismissal.
The general manager contradicted this, stating he only learned of the mother's involvement when she emailed her confession on 23 December 2024, raising doubts about both accounts.
The FWC found the employer's email security practices were inadequate. All staff used identical passwords which were available on a company dashboard:
"The business must take responsibility for failing to put in place even the most basic of appropriate security measures, including individualised and secure passwords."
The FWC determined there was insufficient evidence to establish who actually accessed the confidential email: "These doubts, combined with a lack of evidence, preclude me from reaching a reasonable state of satisfaction about who accessed [the operations manager's] email."
While the worker did share the email with a colleague, the FWC found this action alone didn't justify dismissal, particularly given the employer's poor security practices.
The FWC ruled the dismissal was unjust because there wasn't a valid reason supported by evidence:
"On balance, I am satisfied that the dismissal was unjust because I am unable to find a valid reason for dismissal—one that was sound, defensible or well founded—on the evidence... the matter at issue was a relatively serious one and it warranted a more robust inquiry and evidence-gathering process before a decision was made."
The FWC rejected the worker's claim that his dismissal was retaliatory for his casual conversion request or for being a whistleblower in another investigation.
Rather than reinstatement, the FWC awarded compensation, determining that "the necessary level of trust and confidence" could not be restored in the employment relationship.
The case highlights the importance of email security and thorough investigation processes. The FWC considered not just the alleged misconduct but also the employer's role in creating conditions where such issues could arise.
The compensation was calculated based on what the worker would likely have earned if he hadn't been dismissed:
"The evidence is that [the worker] would not have remained in employment with [the employer] for much longer had he not been dismissed... [The operations manager's] email described phasing him out from the roster as the business approached a quieter period."
Based on this assessment, compensation was set at $1,334.75, representing approximately 47.5 hours of work at the worker's hourly rate, with hours decreasing each week until termination.
The FWC's approach demonstrates that even in cases where dismissal is found to be unfair, compensation may be limited based on how long employment would reasonably have continued.
