- Abusive emails result in reduced pay-out for unfairly dismissed employee
- Sacking of mature forklift driver over safety breach disproportionate
Abusive emails result in reduced pay-out for unfairly dismissed employee
The FWC has reduced the compensation for an unfairly dismissed college teacher by a third after finding he had sent a torrent of abusive emails to management and students.
The full time course coordinator worked for the Asia Pacific International College for seven months before he was dismissed via an email that provided no reason for the termination.
The Commission heard that, other than a warning about "insulting others and bad mouthing the college", given in the month prior to his dismissal, he was provided no prior warning his employment was at risk and he was offered no formal opportunity to respond.
Commissioner Julius Roe said he was satisfied the coordinator's communication with students, staff and the principal was "inappropriate and disrespectful" and that his style was "destructive of the employment relationship".
He sent emails abusing an IT employee, copied to others, saying the systems were "crap" and asking if anyone could "do the job properly".
When the principal told him staff had complained about his abusive attitude he called the charges "childish" and suggested they do their jobs "instead of defending them".
He sent a group message to his own students saying he felt they wanted to "pass with no effort" and threatened to expel them if they didn't improve attendance.
Four months into the coordinator's employment a student made an informal complaint to the principal alleging the course coordinator's behaviour had been racially discriminatory. The principal committed to conducting an independent investigation, but failed to do so.
Commissioner Roe said given the course coordinator's role at the college, he had a "responsibility to build relationships with the management of APIC and to be respectful of APIC's systems and goals … his communications should show basic courtesy and respect".
Commissioner Roe found his behaviour constituted misconduct and was a valid reason for termination, but the lack of prior warning and opportunity to respond made the dismissal unfair.
Commissioner Roe ordered the college to pay the coordinator four weeks' wages including superannuation, however he discounted the compensation by a third because of the course coordinator's "significant and repeated misconduct".
Horgan v Asia Pacific International College Pty Ltd [2015] FWC 5842 (28 August 2015)
Sacking of mature forklift driver over safety breach disproportionate
A senior member of the Fair Work Commission has reinstated a forklift driver, ruling his summary dismissal for two safety breaches was disproportionate, and citing his age, and status as primary carer for his sick wife as relevant considerations.
The 63 year old forklift driver from Laos had been employed by Parmalat Food Products Pty Ltd since 2002 at its Lidcombe factory, located in Sydney's western suburbs, where it manufactures, stores and distributes milk related products.
Parmalat dismissed the forklift driver in March without notice after an OHS investigation revealed that he hadn't properly locked out a trailer door as required by the company's safety policy when he was cleaning spilt milk.
During the disciplinary meeting, the forklift driver claimed that he went to charge the battery on his forklift at the time of the incident, and that he was distracted by the recent death of his brother overseas.
The company terminated the forklift driver's employment, citing his initial failure to properly secure the pallet of milk and his breach of safety policy when he entered the trailer without locking it down.
The company also referred to his collision with another truck when driving his forklift one month earlier, over which he was briefly stood down, and which Parmalat was still investigating when the second incident occurred.
Before Deputy President Jeff Lawrence, the forklift driver argued that his penalty was disproportionate to his offence, which didn't amount to serious misconduct.
Represented by the TWU, the forklift driver also argued that he was treated less favourably than a leading hand who had also entered the truck at the same time to clean up the milk spill, without first locking down the trailer.
Parmalat issued the leading hand (who had 31 years' service without a prior safety incident) with a warning only over the incident.
Deputy President Lawrence found that while the forklift driver had breached Parmalat's safety policies, this didn't represent a valid reason to dismiss him.
"In all the circumstances, there were lesser punishments open to [Parmalat] which would have been appropriate," he said, taking into account the forklift driver's age, his inability to find other work following his dismissal and his carer responsibilities looking after his sick wife.
Deputy President Lawrence ordered the forklift driver's reinstatement and said Parmalat could "have confidence" that the he would adhere to its safety policies in the future.
"I am sure that he has learnt his lesson and will be more careful in the future," the deputy president said.
But in acknowledgement of the safety breach, Deputy President Lawrence discharged Parmalat from paying the forklift driver compensation for the period between his dismissal and his reinstatement.
Tran v Parmalat Food Products Pty Ltd [2015] FWC 5535 (27 August 2015)