A Thales spokesman said: “The company does not condone the inappropriate use of our IT systems for viewing pornography, and we note that the tribunal understood the seriousness of the actions of these three employees.”
Andrew Douglas, principal at M&K Lawyers, told SmartCompany the case reinforces the importance of not just having clear and concise workplace policies, but regularly communicating them to employees.
“There seems to me to be a few things the business failed in, the first thing is that they really didn’t properly provide people with an opportunity to respond to the allegation,” says Douglas.
“There is a real need when you go to discipline somebody for a known wrong to provide them with the opportunity to respond properly and examine their personal circumstances, which is their history of employment and the impact of the termination on them.”
Douglas says there are three lessons for businesses from Fair Work Australia’s decision.
1. Ensure competency in policies and procedures
“Make sure people are competent, not just capable, in policies and procedures,” he says.
Douglas says employers can’t demonstrate people knew what their obligations were and breached them, if they can’t demonstrate they understood the outcome of their behaviour.
He says that although Thales appeared to have quite a strong structure that defined what is right and wrong there is no evidence that anyone had any competence in these areas.
“These are complex policies and processes and the pop-up box was just a limited summary of it,” Douglas says.
“That’s a warning for all employers there needs to be more text to it and to make the person apprehend the risk there is. Thales didn’t bring it home to the employee and for that reason it failed.”
2. Use disciplinary meetings to build a case
Employers should not attend disciplinary interviews with preconceptions. They should also clearly ask employees if they are aware of the policies and procedures being discussed.
Douglas says employers must use these meetings to actually build their case instead of waiting for the matter to go to Fair Work Australia.
3. Take into account work history and the impact of any outcome
“Always take into account past work experience and what is the impact of the outcome measured against the nature of the offence,” says Douglas.
He says when businesses dismiss an employee they must not only consider the employees life in the business but also consider their personal circumstances once you release them into the community and measure that against the seriousness of the wrongdoing.
For example, he says if you terminate an electrician in the middle of the city he has numerous opportunities for work but if you terminate a production worker in the middle of the country you are consigning them to long periods of unemployment.
