Unfair dismissal; employers beware overacting

The Fair Work Commission has ordered “on very fine balance” the reinstatement of an employee of 17 years standing who was dismissed for submitting false travel reimbursement claims on 141 occasions, and finding that there was a valid reason for dismissal. The Commission concluded that the employer had not provided sufficient weight to the lengthy and otherwise unblemished record of service of the employee and that the employer had overplayed its hand in the application of a zero tolerance policy which did not allow it to consider relevant mitigating factors including a very long delay in launching an investigation. The Commission did however deduct the overpayment of expenses from the compensation ordered, which was also reduced by 50% for the employee’s misconduct. Interestingly the Commissioner appears to have had the view that there was “an substantial onus upon the employer to convince him that reinstatement was inappropriate but this was in the context of whether reinstatement was not appropriate other than for being “undesirable or difficult” to put into effect.

Camilleri v IBM Australia Ltd (2014) FWC 5894 delivered on 10 September 2014