EMPLOYMENT LAW: EMPLOYER AMBUSHES EMPLOYEE
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment law and/or human rights law before acting or relying on any of its content.
When it comes to allegations of serious workplace misconduct, workers should be given a reasonable opportunity to respond to any claims made against them.
Case study – where an employee was ambushed by their boss
In Mrs Sandra Ward v West Australian Newspaper Limited  FWA 1785 the Fair Work Commission found that an employer had unfairly dismissed an employee in circumstances where the employee was not given a reasonable opportunity to respond to allegations of serious misconduct, the employee arguing that she had been ambushed.
Ms Ward was employed as an Advertising Agency Coordinator with the West Australian Newspaper (WAN). At the time of her dismissal she was described as a diligent and highly efficient employee. She was well respected by both clients and colleagues.
On 13 November 2009 she received notice that her employment had been terminated on the grounds that there had been a “complete loss of trust and a breakdown of the employment relationship”. It was alleged that Ms Ward had deleted notes relating to some of the paper’s advertising clients from the business’ IT system, in retaliation for her employer’s planned reallocation of those clients to other staff. The paper formed the view that, by virtue of this conduct, Ms Ward’s access to essential company information posed a significant risk to its ongoing business.
Ms Ward, by contrast, maintained that the notes in question were her personal notes and therefore hers to delete.
The Commissioner was critical of the fact that Ms Ward had not been given notice of a meeting in which the employer was contemplating terminating her employment. The WAN argued that the seriousness of Ms Ward’s ‘very sinister’ and ‘severe’ conduct, and the associated need to investigate the matter as soon as possible, justified their decision not to inform her of the nature of the meeting or its content. However, the Commissioner agreed with Ms Ward that this meeting essentially constituted an “ambush”. Although the employer variously described the meeting as a “conversation” or “discussion”, in reality it was a disciplinary meeting with very serious consequences for Ms Ward’s continued employment at the WAN.
Ultimately, the Commissioner was satisfied that:
Ms Ward was called to a meeting with her employer with no notice of its purpose or seriousness
It was not a “conversation” or “discussion”
The employer entered the meeting already having formed the view that Ms Ward had intentionally and maliciously deleted information
The lack of clarity and notice led to Ms Ward being confused, and giving hesitant answers which only served to reinforce this belief
In relation to the gravity of Ms Ward’s conduct, the WAN emphasised that the real issue was not the value of the notes, but rather the destruction of the relationship of trust and confidence which exists between an employer and employee. In its view, Ms Ward’s conduct was malicious and therefore inexcusable.
However, the Commissioner did not share this view, concluding that Ms Ward had acted in a “fit of temper” when she found out that client accounts were to be reallocated. Ms Ward had no intention to cause significant financial, operational or reputational harm to her employer.
Under section 385 of the Fair Work Act 2009 (Cth), a person has been unfairly dismissed if the Fair Work Commission is satisfied that:
(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) The dismissal was not a case of genuine redundancy.
In this case the main issue was whether Ms Ward’s dismissal was harsh, unjust or unreasonable. The Commissioner concluded that it was, for the following reasons:
Ms Ward was not treated fairly nor was there any valid reason for her dismissal.
Ms Ward was called to attend a disciplinary meeting without adequate notice. Further, at the meeting, the allegations concerning her were not put in a fair and straightforward way so as to enable her to respond.
The timing and location of the meeting, as well as the lack of notice, effectively prevented Ms Ward from having access to a support person.
There was no evidence that Ms Ward’s performance prior to her dismissal was unsatisfactory. To the contrary, she was an exemplary employee.
The WAN is a large employer with access to sufficient human resources management expertise and resources, and thus should have handled the matter differently.
The Commission found that Ms Ward had been unfairly dismissed according to the requirements set out in the Fair Work Act 2009. It ordered that she be reinstated to her old position, and paid a small sum to make up for lost wages.
This case demonstrates the importance of knowing and acting on your rights. It also reminds employers or business owners of one simply point and that is: don’t ambush your employees!
By Sebastian De Brennan, Barrister, firstname.lastname@example.org