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Explicit phone porn: procedural investigation errors foil dismissal of sales manager

A company had a valid reason for sacking its sales manager, including the post-employment discovery of pornographic images on his mobile phone, but "substantial" procedural deficiencies made the dismissal unfair, the Fair Work Commission has ruled.

A carpet company dismissed the Queensland-based sales manager without notice in September last year, citing his poor sales figures, his "negative and apathetic" attitude, and his failure to provide monthly reports.

 

 

The company's general manager also told the FWC that after the dismissal, he checked the sales manager's phone for any missed messages and found numerous pornographic images stored on it.

He said the storage of the images was contrary to the company's electronic equipment policy, which prohibited employees accessing "internet sites that contain obscene, hateful, pornographic or other illegal material".

According to the general manager, the images "depicted women either on their own or with other people taking part in a variety of explicit sexual acts. Most of them seem to be pictures he had downloaded from some other sources, presumably the Internet, rather than photographs that he might personally have taken."

The company also conducted a tour of the sales manager's clients after his dismissal, which confirmed its view that he had been underperforming.

The FWC said the company was entitled to rely upon conduct that becomes known after the dismissal in justifying it, and it was open for him to find that there were valid reasons other than those pressed by the employer at the time. It said the manager's sales figures alone would not have warranted his sacking, noting that his colleagues had also failed to meet their targets.

The FWC Commissioner observed when all of the conduct and performance issues were taken together, there was a valid reason for his dismissal.

"It brings into question his judgment, and the extent to which he could have retained his employer's trust and confidence into the future," he said.

The Commissioner said the evidence "as a whole" persuaded him that the company had sound reasons to lose confidence in the employee's capacity to perform his role as a sales person.

However, the Commissioner said the company engaged in a “substantial” denial of procedural fairness, noting that "there was no single point at which [he] was given the benefit of a focused or pointed warning in relation to his unsatisfactory performance".

"Before the employer formed the ultimate view about [the employee's] future it should have extended him an opportunity to give an account of himself, his performance and his conduct (as there were many categories of concern about [his] conduct and performance)."

Instead, he had been summoned to a Monday meeting on the previous Friday, without being told the reasons for it. At the meeting, the general manager told him they were going to let him go "today", based on his poor performance.

When asked if he had anything to say in response, he replied: "Would anything I say make any difference?" The general manager said he answered "no", but a "limited" discussion followed on some of the issues.

The FWC said the point of providing employees "at an early point" with concerns about their performance was to give them an opportunity to rectify the problem, and it was this area in which the sales manager had been "most seriously deprived". The Commissioner concluded that the dismissal was unfair, but did not order reinstatement as the sales manager wasn't seeking it.

Assessing compensation, the Commissioner said the manager would only have lasted another five weeks in the job. From this, he deducted a week (or "20%") for his contributory conduct.

iHR views this case as a classic example of a mishandled HR investigation that has cost an employer precious time and money. Ensuring workplace investigations are carried out fairly and thoroughly is essential, as these processes often form the basis for any decisions made regarding disciplinary action. They will also come under scrutiny if the employee later challenges the decision.

iHR is a leading provider of workplace investigations services and can also review your internally conducted workplace investigations to ensure they are sound and stand up to external testing, as well as training your executives.

 

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