Dismissing an employee for not smiling in staff photos was not “sound, defensible and well founded,” the Fair Work Commission has ruled in a recent case.

A real estate agency employee was recently dismissed for, amongst other things, failing to smile in staff photos, which was cited by the agency’s manager as evidence of his “negative attitude.” The other reasons given for his dismissal included:

  • sending an inappropriate email to two colleagues, which called into question the integrity of the agency’s management;
  • changing his colleagues’ access privileges on a company database to prevent them accessing details for a prospective vendor;
  • breaching the company’s internet usage policy by downloading 220 gigabytes of movies for personal use; and
  • failing to adequately notify the agency when an injury prevented him from attending work.

In considering the claim, the Fair Work Commission found that, though the conduct might have warranted some discussion between employer and employee, it did not warrant dismissal. The employee’s dismissal was found to be “harsh, unjust and unreasonable,” and he received compensation for lost income.

An underlying theme in the judgment is the lack of procedural fairness in the employer’s handling of the dismissal. The commissioner found that several of the incidents of alleged misconduct had not been discussed with the employee either at the time or as part of the dismissal. By failing to discuss the incidents with the agent, the employer denied him the opportunity to defend himself or present evidence that may have explained or ameliorated his behaviour.

In some instances, the employer had had brief discussions with the staff member about alleged misconduct, but had preferred to keep the evidence “up his sleeve” for later discussions.

In regards to the employee not smiling in the staff photos, the commissioner stated that there was “no general inference” that could be drawn from the employee’s appearance in the photos and that, because he had never been asked why he was not smiling, it was impossible to know if he had a valid reason.

The absence of a thorough workplace investigation also meant that some of the claims were lacking critical supporting evidence – for example, one of the employer’s allegations was that the agent had changed access to vendor information so that his colleagues could not access details for a prospective vendor he was courting. The employer was unable to present conclusive evidence that the agent was responsible for altering the access privileges.

The case raises some important points about managing disciplinary issues and dismissal situations. First, it is clear that procedural fairness is a critical factor in workplace investigations. Second, there must be conclusive evidence of misconduct to support any dismissal claim. Third, employers must distinguish between behaviour that might be vaguely irritating and behaviour that constitutes gross misconduct warranting dismissal. And finally, employees must be given the opportunity to respond to allegations of misconduct.

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