Encouraging other employees not to comply with workplace policies found to be valid reason for dismissal

In the recent case of Ms Brittany Petersen v Serco Australia Pty Ltd T/A Serco [2021] FWC 4569, Deputy President Lake of the Fair Work Commission (the Commission) upheld the employer’s decision to dismiss an employee who, in the delivery of training to new employees, made comments that undermined the operation of the employer’s policy and procedure relating to the possession of mobile phones while on duty.

The Respondent, Serco Australia Pty Ltd (Serco) dismissed the Applicant, Ms Brittany Peterson, from her employment, for alleged comments made in her role as a training support officer to new employees during an induction course. The comments made by Ms Peterson suggested that new employees need not comply with Serco’s policy and procedure around possession of personal mobile phones by employees while working in detention centres and/or on detainee escort duties.

Facts

Ms Peterson was employed by Serco in dual roles. Her substantive role was in the transport and escort of detainees. Additionally, she assisted with the training of new Serco employees who were to work in various positions across Serco’s detainee operations.

On 17 November 2020 Ms Peterson was conducting an induction session (the induction) for new Serco employees who were to work within Serco’s detainee operations. Some five weeks after the training had concluded, Serco received an anonymous complaint purportedly from a trainee present at the induction. The complaint alleged Ms Peterson made four comments during the induction. Three of those comments suggested ways to ‘get around’ Serco’s policies about possession of personal mobile phones by employees while working in detention centres and/or on detainee escort duties. The fourth statement related to not logging lunch or other personal breaks if ‘running late on a task’.

An investigation by Serco followed, during which another employee also present at the induction gave a statement confirming that he had heard Ms Peterson make the alleged comments. Serco suspended Ms Peterson from duty on 5 January 2021 and subsequent to this, held a ‘fact finding meeting’ with Ms Peterson on 11 January 2021. A disciplinary meeting was held with Ms Peterson on 20 January 2021 and, relevantly, there was no further communication between Serco and Ms Peterson until 16 March 2021, when Serco telephoned Ms Peterson and advised her that her employment was terminated.

Ms Peterson filed an unfair dismissal application in the Commission, submitting that there was no valid reason for her dismissal and that her dismissal was harsh, unjust or unreasonable. She sought re-instatement to her substantive position.

Decision

Deputy President Lake found that, in the particular circumstances of the case, Serco’s decision to terminate Ms Peterson’s employment was not harsh, unjust or unreasonable as there was a valid reason for termination.

Deputy President Lake was satisfied that Ms Peterson’s comments amounted to a significant breach of her employment obligations. This was particularly so owing to the seriousness of the presence of unregistered phones within a correctional facility and because the comments were made to impressionable recruits during a training session. It was in this context that the Deputy President considered that the termination of Ms Peterson’s employment was not harsh, unjust or unreasonable.

Deputy President Lake did, however, consider that the investigation undertaken by Serco was not without flaws. He expressed concern about placing too much reliance on anonymous information during an investigation and considered that the matter could have been dealt with more expeditiously, rather than Serco taking some two months between the disciplinary meeting and delivery of the decision to terminate Ms Peterson’s employment.

Take Home Messages

This case is a useful reminder of the importance of employers ensuring there are sound policies and procedures in place in the workplace, and that those policies and procedures are relevant to the particular kinds of work undertaken by employees.

The case also demonstrates the importance of employee compliance with workplace policies and procedures. Additionally, it demonstrates that employees may face serious consequences – including termination of their employment, where they encourage other employees no to comply with policies and procedures in the workplace.

For any workplace investigation, employers are reminded to ensure that the investigation is undertaken in a fair and timely manner, and to ensure any disciplinary action taken against an employee is founded on sound evidence.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.