This employer was right to sack an employee who attended an illegal anti-vax protest, but summary dismissal was a step too far, rules FWC.
A Melbourne-based crane operator who attended an unlawful anti-vax protest outside the office of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) last September had his employment terminated with immediate effect the following day.
The company claimed the employee had engaged in serious misconduct by attending the rally and had failed to comply with the lawful and reasonable direction that he go home following the closure of his worksite that morning.
The employee claimed he had been dismissed as a “‘knee-jerk’ reaction to the pressure that was obviously applied to [the company] by the CFMMEU in connection with his attendance at the protest”.
He added that breaching the public health orders in place at the time was an issue that strictly concerned him and the Victorian authorities and that it “did not have any bearing on his employment with the company”.
Claiming his dismissal was unfair, the employee brought the matter to the Fair Work Commision (FWC).
Although the FWC ultimately ruled the actions of the employee were not serious enough to warrant summary dismissal, the Commission said the crane operator’s actions in ignoring public health orders and attending an unlawful protest involved his work and jeopardised his employer’s reputation.
“First, the protest concerned arrangements for tearooms and vaccination requirements for construction workers, including [the crane operator],” said Deputy President Alan Coleman.
“It was a protest relating to working conditions for the industry.”
The FWC upheld the employer’s decision to dismiss the employee, but ordered the employer to pay the employee four weeks’ notice due to the hastiness of its decision to dismiss him on the spot.
HRM unpacks the case with Carrie Peterson, Principal Solicitor at Peterson Haines.
Although the FWC noted the employee had not participated in any violent actions at the anti-vax protest himself, the fact that he had attended the rally was sufficient cause for dismissal.
“It was an illegal protest that took place during a time when people were in lockdown,” says Peterson.
“The employee claimed he didn’t know it was a violent protest. Even if we take that on board, at the end of the day he was still attending a protest knowing full well what the current health orders were.”
While there are certain protections for people who attend protests, these protections don’t cover illegal activities.
“I think it’d be a very different scenario if there was no COVID-19 and it wasn’t an illegal protest. Employees have to take into account the current state and what is going on around [them] whenever they want to partake in something like that.”
Was summary dismissal an overreaction?
Reinforcing the Commission’s point of view, Peterson says dismissing the employee was a reasonable step to take, but enforcing a summary dismissal was not.
“This is a good reminder to employers to have a proportionate response when it comes to any disciplinary action [you]want to take,” says Peterson.
“I’m not sure that [the employee’s] misconduct was serious enough [to warrant summary dismissal]… He should’ve been given the appropriate notice. Employers shouldn’t be as gung-ho as this company was.”
In a situation like this case, Peterson says giving the employee gardening leave and four weeks’ pay, and then letting them go, as opposed to allowing them continue working the four weeks, would be a proportionate response.
It could be a different story if the misconduct was ongoing.
“If this employee was going to protest every single day and the employer told him that wasn’t okay, I could understand him being rushed out. However, that’s not what happened in this case.”
Gone are the days when employees’ actions outside of work hours had no bearing on their professional role, says Peterson. We see this all the time with dismissal cases pertaining to employees’ social media activity, for example.
This case reinforces how our personal and professional lives are often entwined.
So does this mean employers could theoretically include a clause in their employment contract, or establish a conduct policy, which states employees are not permitted to attend illegal protests?
Peterson says this probably wouldn’t be a wise move.
“The moment employers try to include such things in policies you enter dangerous ground… You don’t have a crystal ball. It’s really difficult to try and hone in on exactly what a company would think is illegal activity,” says Peterson.
“It’s so subjective because it depends on what’s happening at that point in time, not just within the business, not just between an employee and employer, but in the greater state of things as well.”
She also thinks employers will increasingly find themselves dealing with these sorts of employee issues.
“The way we work is evolving, and the way we live is evolving. Employees won’t be able to keep up with every scenario because, frankly, we don’t know what scenarios are around the corner.”
Instead of outlining every illegal activity that employees can’t engage in outside of work, companies should keep open lines of communication, says Peterson.
“If employers always keep in the back of their mind that their fundamental job is to protect the health and safety of their employees, then I think it’s important to have continued communication on what’s happening around them, what’s acceptable and what is not.”
Protecting a company’s reputation
The case isn’t only about breaching health and safety regulations – it also concerns the employer’s reputation.
“A lot of employees don’t really appreciate how it doesn’t matter where they are, they can be seen to be advocating for their employer. They are a voice for their employer,” says Peterson.
“Employees should be made aware of this, and understand how valuable the employer’s reputation is.”
In this vein, Peterson suggests companies reinforce the employee’s role as a representative of the company by creating clear policies.
For example, Peterson notes how employers should have a social media policy which makes clear that an employee publicly venting about their boss on Facebook to their friends can have ramifications for the company’s reputation.
“These sorts of policies need to be updated. In the current market, they should probably be looked at every 6-12 months because things are moving so quickly,” she says.
“This case is a reminder to employees that they have a duty to their employer to protect their reputation.”
The information in this article is general in nature, and should not be taken as legal advice. Where necessary, please consult a legal expert for professional and tailored advice that addresses your company’s specific needs.
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