Motor Dealer ordered to pay compensation after firing an executive for viewing bikini model website.
It is a timely reminder that even though a business may have a valid reason to terminate an employee, the principles of natural justice and procedural fairness are required to be provided to avoid a successful unfair dismissal claim.
In a case before the Fair Work Commission (FWC) a car dealership was defending an unfair dismissal claim for firing their financial controller for accessing a bikini model website.
The background leading up to the dismissal was that the employee previously admitted accessing pornographic websites while at work. The dealership issued a first and final warning for this admission stating that the employee was in breach of their internet usage policy.
Approximately four (4) months later, the dealership received a complaint from another employee that the financial controller had been accessing inappropriate websites. The dealership commenced an internal review of the employee’s internet use which revealed he had accessed a website called “Wanderlust, wildly beautiful women in nature” which depicted women in lingerie, bikini and see through tops. The employer then dismissed the employee without notice.
The FWC found that the employer had a valid reason to terminate the employee’s employment, however due to “multiple” procedural failures on the part of the employer ultimately rendered the dismissal, harsh, unjust and unreasonable and therefore unfair.
Due to the FWC finding the dismissal was unfair, the employer was ordered to pay just over $25,000.00 in compensation to the financial controller.
Lessons for Employers
If you have an employee that has been issued a final warning for their conduct, if there are further allegations made, you are required to investigate (as the employer has done in this case), however you are also required to provide the employee with an opportunity to respond to the allegations prior to the termination of their employment.
Failure to provide the employee with the opportunity to respond may result in a successful unfair dismissal claim similar to this case.
There are a number of strategies in providing an employee with an opportunity to respond such as:
- Issuing a show cause letter setting out the allegations and providing the employee with a lawful and reasonable direction to respond to same in writing;
- Following receipt of the response to the show cause letter you may issue a letter of determination and if you determine the allegations to be substantiated, you may proceed to terminate the employee’s employment’;
- Hold a meeting to discuss the allegations with the employee, it is best practice to have a second representative of the business attend the meeting and if the employee requests a support person be present, this request should not be denied, however there is no requirement to offer the employee a support person.
Situations where employees are viewing or accessing pictures of bikini clad women can be particularly prominent in certain industries. This is also a consideration that the FWC will have in determining whether in similar circumstances, the dismissal is harsh, unjust or unreasonable.
As the writer has specific experience in providing advice to the motor trades, should you wish to discuss a situation where you believe an employee may have engaged in misconduct and you wish to know your rights and how you may proceed please contact our office.
NB Lawyers – the Lawyers for Employers
07 3876 5111