The slippery slope of subjectivity; unfair dismissal

Some decisions of the Fair Work Commission are unsatisfactory, particularly those in unfair dismissal cases where the Commission finds that there was a valid reason for the dismissal, that the employer did everything right in terms of process but there is a limp and sometimes unexplained sting in the tail when the Commission rules that notwithstanding all of that the dismissal was unfair because the punishment didn’t fit the crime so to speak. A slippery slope of subjectivity. It is only because the Fair Work Act precludes appeals unless the appellant can make out a case of public interest that such decisions remain on the books.
However, just as often there is a case the outcome of which reeks of common sense. And so it was in Mohapatra v Acciona Energy Australia Global Pty Ltd trading as Acciona (2015) FWC 5976 delivered September 2015 in which Commissioner Roe dealt with an application for an unfair dismissal remedy by a dismissed employee who during the year before his dismissal had purchased 14 massages, a blender, an Australia Day t-shirt, singlet and two boxer shorts, a pair of gym shoes and shorts, a three meter extension lead, a backpack, a duffle bag, two bathmats, a cooler bag, vitamins and a heater using his then employer’s and business credit card on the basis that they were work related expenses.
In dismissing the application, the Deputy President wrote “What is acceptable as a business related travel expense is not a cultural question, it is a question of common sense standards which are sometimes supplemented by local employer policies and/or practices.”
Even if the (employee) was “motivated by a lack of judgment and understanding …… it was “such an extreme case”, given the engineer’s level of education, responsibility and seniority, that it has to be regarded as serious misconduct”.
“An employer has to be able to trust that a senior employee who is expected to work and travel autonomously will use the employer’s credit card responsibly,” the Commissioner. “However, even if I am wrong, I am satisfied that he deliberately disguised the nature of the items by describing them as meal expenses and by not seeking the advice of his manager for such an unusual request.”
“I am satisfied that the valid reason for termination in this case is so clearly established by the evidence that there is no need to explore alternative hypotheses,” he said.