This extract from a decision of the Fair Work Commission deals with the issue whether the Commission can take into account of events which the employer was not aware of at the time of a dismissal but which it subsequently becomes aware of them and they are relevant.
“[107] Previous decisions of the Commission have considered whether information acquired after the time of dismissal can be taken into account, even if the employer was unaware of those facts at the time and did not rely on them when the dismissal occurred. For example, in the matter of Dundovich v P&O Ports,106 the Full Bench considered the circumstances that existed when the decision to terminate was made, and whether they could extend to include circumstances which were not known to the employer at the time of the dismissal but were known at the time of the unfair dismissal hearing. The Full Bench concluded at [79]:
… That this fact was not known to the employer at the time of the decision to terminate Mr Dundovich’s employment is not determinative. As the Full Bench in McLauchlan’s case observed, facts which existed at the time of dismissal but only came to light after the decision may render a termination of employment harsh, unjust or unreasonable.
In the decision in Lane v Arrowcrest Group Pty Ltd,107 von Doussa J concluded at 456:
In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances.
[108] I am satisfied, in response, that these decisions confirm that the reasons for termination relied upon need not be confined to the reasons given at the time of termination and can extend to include other reasons if they can be established by evidence provided to the Commission at the time of hearing. Hence, whilst the Respondent purported not to redeploy the Applicant because she did not have the requisite qualifications108 or she had gone off track in the interview for the position or her responses were limited,109 the Respondent may rely on misconduct that comes to light in the redeployment period prior to the dismissal – whether the Respondent becomes aware of the evidence prior to the dismissal or post the dismissal.
[109] Before the Applicant was dismissed on 5 April 2024 by way of redundancy, the Respondent was aware that the Applicant had sent, using her work email, an email to her personal email address that included information that identified a consumer of the Respondent. Subsequent to her dismissal, the Respondent identified that the Applicant had sent 46 emails from her work email to her personal email address.
[110] The Applicant had been informed of the alleged misconduct of sending an email from the Respondent email account to her personal account and had been provided the opportunity to respond to the allegation. The Applicant admitted to sending the email in question, in addition to others. It was evident that the Applicant had not sought the Respondent’s permission to send the email to her personal email account. If the Respondent’s IT system had not identified the sending of an encrypted message to a personal email account, I doubt that the
Applicant would have voluntarily disclosed such information. The Applicant admitted her
‘mistake’ only when confronted with it.
[111] Ms Hitchins gave evidence that as a result of the evidence provided by IT and the Applicant’s answers in the meeting of 3 April 2024, it was concluded that the Applicant had breached the Code and had engaged in serious misconduct. However, because the Applicant’s employment was due to end due to redundancy, no further action was taken with regard to the serious misconduct.110
[112] I concur with Ms Hitchins’ view that the Applicant’s conduct constituted serious misconduct.
[113] The Applicant failed to appreciate the seriousness of her actions. The Applicant states she had no intention of sharing any consumer information with anyone but also presses that she sent the emails to herself to demonstrate competency to prove that she was doing a good job. The purpose of the Applicant sending herself the Respondent’s emails was not for the purpose of using the consumer’s information as was only necessary to assist in the provision of services to the consumer, but to support the Applicant’s future argument that she was competent in her job. It was a self-serving act that did not put at the forefront the obligations she owed, as an employee of the Respondent, to those consumers that were in the Respondent’s care and to the Respondent. Throughout the hearing, it was emphasised by the Respondent that such consumers were vulnerable – which is understandable given that they have accessed the services of the Respondent to assist them with drug and other substance addictions. The Applicant worked within an environment where she was trusted to deal with the personal and sensitive information of consumers in accordance with the Code and Privacy Policy. She failed to do so.
[114] In the circumstances so described, I am satisfied that it was not reasonable to have redeployed the Applicant in the Respondent organisation.
6 The Applicant’s casual position as night weekend supervisor
[115] Had not the Applicant’s employment ended in the manner that it did, it was open to the Respondent to have terminated the Applicant’s employment on the basis of serious misconduct.
[116] Having considered each of the matters specified in s 387 of the Act, I am satisfied that the termination of the Applicant’s casual employment was not harsh or unjust or unreasonable. There was a valid reason for the Applicant’s dismissal of which she was informed and had the opportunity to respond. At the meeting on 3 April 2024, the Applicant was not denied a support person. As to the factors in ss 387(f) and (g), I consider them to be neutral in the circumstances, and in respect to other matters as described in s 387(h), the termination of the Applicant’s employment was not disproportionate in light of the serious misconduct engaged in by the Applicant. However, I further note it is not apparent that the Applicant was denied payment for her notice period.
7 Conclusion
[117] I have found the Applicant’s dismissal was not unfair. In respect of her position as a part-time support worker, this was a case of genuine redundancy within the meaning of s 389(1) of the Act and the circumstances in s 389(2) did not exist. Further, the Applicant’s dismissal in respect of her casual position was not not harsh or unjust or unreasonable. I must therefore dismiss her application. An Order to this effect will be issued with this decision.
[118] Insofar as it is necessary to do so and observing that the Respondent did not seek a confidentiality order, a Confidentiality Order11 will, nevertheless, issue under s 594(1)(c) of the Act, that the name of the person in the ‘encrypted email’ will not be disclosed to any person and such information is to be kept confidential. It is therefore incumbent upon the Applicant and the Respondent to ensure that the privacy of such person and that confidence is maintained regarding the material filed. “
Retter v WA Council on Addiction Inc T/A Cyrenian House [2024] FWC 1803 delivered 11 July 2024 per Beaumont DP