Pharmaceutical giant CSL has been ordered to pay a former staff member $26,000 for unfairly dismissing him after making a number of allegations about his conduct, including that he breached his employment contract by running an eBay store selling sex costumes and that he had abandoned his employment.
The staff member was employed by Seqirus, a business unit of CSL, between July 2015 and January 2017. The Fair Work Commission heard that in September 2016, the employee made a number of bullying allegations against a senior staff member.
After an investigation took place, management then later met with the employee to raise a number of concerns about his own behaviour, including that he had unlawfully recorded conversations with other staff members and had a “deliberate disregard to follow a workplace direction”.
In November 2016, the company then put six allegations to the worker and requested a response to these via his legal team. These included that he had recorded conversations with a senior staff member “contrary to law”; that he had ignored a direction from his manager; and that he had breached exclusivity provisions in his employment contract by “engaging in private business or other employment and that he had told another employee he ran an eBay business selling sex costumes”.
The employee did operate a side business in the form of an eBay store that sold a range of adult products, and this was discovered after the initial bullying claim was lodged.
During this period, the employee was unwell and had taken time away from work. He gave evidence to the Commission that by the end of 2016, he required family to help care for him.
In January this year, CSL scheduled meetings with the staff member, and the company says he failed to comply with directions to attend three of these meetings.
However, Commissioner Nick Wilson heard evidence that throughout this period, there were instances where the company only contacted the staff member directly about these meetings, and not his legal representatives.
On January 19, the staff member was issued a termination notice, citing his failures to communicate an extended absence and failure to attend three meetings in January.
The separation certificate also cited employee misconduct as a reason for dismissal, and “elaborated upon as him having ‘abandoned employment’”.
But in his decision, Commissioner Wilson found the company’s reasons for the dismissal did not “amount to a sound, defensible or well-founded reason for the termination of [the worker’s] employment”.
The commissioner was also critical of CSL’s focus on the staff member’s operation of the eBay store, highlighting that the store had made a profit of less than $500 in a year.
Wilson said that by the time CSL found out the nature of the products sold through the store, “it had already made the decision to part company with him”.
Finding the dismissal of the worker was harsh and unreasonable, he ordered the company to pay $26,622 in compensation to account for eight weeks’ wages and superannuation.
In a statement provided to SmartCompany, CSL said it does not see the value in appealing the decision through an expensive process, despite being disappointed by the finding.
SmartCompany was unable to contact the former staff member prior to publication.
Managing director at Workplace Law Athena Koelmeyer reminds businesses to keep communications and reasoning clear when undertaking any processes that could result in dismissal of staff
This case involved a number of allegations against the staff member that were rejected by the Commission as being a good enough reason for dismissal, and Koelmeyer says it’s critical businesses ensure they lead with their best arguments first.
“Sometimes you’d be better off not including a weak allegation in among your strong allegations. Just go with the strength that you have,” she says.
Other takeaways from this case include the importance of clear and structured communication with a staff member and their legal team in the event of a dispute, she says.
“I think here the Commissioner took a really dim view of the conduct of the employer, in dealing with an employee who was at least ostensibly unwell,” she says.
Employers need to be able to show that they have made reasonable attempts to contact staff if they are out of office but dispute proceedings are ongoing, Koelmeyer says.
They should also ensure legal representatives are given any necessary communications if a worker is absent. It’s also possible to attempt to reach the worker through their emergency work contact if the staff member or their representatives cannot be reached at all, she says.
Finally, while the staff member’s side business was found to not be a valid factor in dismissal in this case, all businesses should think about how they communicate their non-compete clauses, Koelmeyer says.
She advises having clauses in contracts that prevent staff from undertaking other work without the express permission of the business, saying this opens up the conversation about other work before potential conflicts arise.
“Those sort of provisions in contracts allow for the employee to approach the employers and tell you first,” she says.
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