The need for the Fair Work Commission’s decisions on unfair dismissals to be sensible and above all to ensure that the punishment fits the crime is evident in a recent decision in which a senior employee was dismissed for writing humorous but arguably disrespectful e-mails about her superiors.
Calvary Health Care, an entity controlled by the Catholic Church a sought to justify a dismissal on the basis that the employee had failed to uphold the Catholic Christian organisation’s four value pillars of hospitality, healing, stewardship and respect, and that her conduct constituted a serious breach of the “core values that underpin the mission and the spirit of the organisation”.
In my opinion this reasoning would apply with equal force in situations including course and aggressive language; the punishment must fit the crime.
The Commissioner said
“The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post (2013) FWCFB 6191also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”
It follows from reference to these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well.
As the Decision of the Full Bench in Australian Postal Corporation also makes clear consideration of “valid reason” inevitably involves weighing various considerations, including the conduct involved and any other mitigating or other relevant matters. I have sought to adopt the approach of these authorities in coming to a Decision in this matter.
The content of the particular emails are obviously critical to the decision to terminate Ms Beamish’s employment, and require those exchanges between her and Ms Handley in September/October last year to be reviewed. I make the following broad observations at the outset about their content. Firstly, some are more significant than others in terms of their content and, secondly, those that make reference to other senior staff members are, at best, ill-advised. I am also satisfied they are exchanges which normally would have been contained in conversations between two colleagues if they worked at the same location, but were instead exchanged in emails because they were each based at the different Calvary Hospital sites in Launceston…….
As indicated, I am satisfied that at least some of the references in the emails, particularly those involving other senior staff members, are unfortunate and ill-advised. I am also satisfied they constitute a breach of some of the values and behaviours in the Code of Conduct and policies that Calvary seeks to have its staff abide by and adhere to…..Ms Beamish’s length of service at Calvary, and more importantly her employment record during that time, are also significant considerations in terms of whether Calvary had a valid reason to dismiss her. Despite some submissions which sought to raise issues about her performance, and her relationship with other employees, including some Visiting Medical Officers, these were not able to be substantiated in cross-examination. I am satisfied instead that the evidence indicates Ms Beamish was a valued and committed member of the team at Calvary, who had occupied senior roles in the organisation over an extended period of time in a difficult and demanding working environment. These circumstances are clearly significant and contribute to a view that the “punishment did not fit the crime.”
I have already acknowledged that Ms Beamish’s actions were at best unfortunate and ill-advised. I have also acknowledged that they appear to constitute a breach of Calvary’s Code of Conduct and its Responsible Use of Technology policy. These breaches assume greater significance given Ms Beamish’s seniority in the organisation. However, I have also made reference to various matters, which I am satisfied provide some explanation for her actions, and also act to militate against their significance. After weighing all of these considerations I am unable to conclude Calvary had a “valid reason” to dismiss Ms Beamish.
Beamish v Calvary Health Care Tasmania Limited (2016) FWC 1816 delivered 25 May 2016 per Gregory C