November 2019 – Sex toy practical joker wins unfair dismissal case & When can you lawfully terminate an injured employee?

Sex toy practical joker wins unfair dismissal case


Last year, we wrote a three-part newsletter series on unfair dismissal, which we’ll put a link to at the bottom of this article. Two key considerations that the Fair Work Commission will consider in cases involving unfair dismissal are whether the termination was unreasonably harsh, given the circumstances, and also, whether the employer approaches disciplinary proceedings in a consistent manner.

A BHP subsidiary recently found themselves in a spot of bother, when they failed to follow their own disciplinary guidelines, which actually formed part of an enterprise agreement.

Two mine site employees were engaged in something of a prank war. This had gone on for some time and seeking payback, one of the employees decided to hide butter knives and a sex toy in their colleague’s carry on luggage. Arriving at the airport, the prankster was secretly filming as their colleague made their way through airport security, blissfully unaware of the impending situation that was about to befall them.

A few months later, whilst the first incident was being investigated, the pranking employee was one of four people involved in a workplace “selfie”, in which 3 female employees posed “provocatively”. The employee was then summarily dismissed.

The unfair dismissal claim was mostly upheld. Whilst the FWC did find that the conduct of the employee justified termination, it was deemed that the failure of the employer to follow its own guidelines, which involved a warning system, justified the dismissal as being considered unfair. The Commissioner hearing the case believed that reinstating the employee would be inappropriate given the circumstances, and ordered the employer to pay the employee 10 weeks’ wages compensation, reduced by 50% for misconduct.

This is why employers need to make sure that that are following the rules and ticking all the boxes when it comes to terminating staff. A fair, consistent, level playing field that abides by industrial law must be followed.

3117187373 19549d5407 b

When can you lawfully terminate an injured employee?

In late 2018, the Fair Work Commission found that Pilbara Iron Company (Services) Pty Ltd’s (Rio) dismissal of an employee, Ms Tito (Tito), on the grounds of ill health was not unjust, unreasonable or harsh after lengthy efforts were made to find her suitable alternative employment.

The Commission found that Rio’s deference to various medical opinions was prudent in the circumstances and that nothing more could have been done to accommodate the injured employee.

Tito was a haul truck driver and had injured her neck twice whilst working with Rio, with the second injury making her incapable of driving a haul truck. She was offered another position, but turned it down and was then dismissed by Rio, on the grounds of her ill health.

The medical evidence showed that Tito was not fit to perform the inherent requirements of her position, and that no reasonable adjustments could have been made to remedy this.

In many respects, Rio’s handling of Tito’s situation was exemplary and there are several practices that employers should take note of when dealing with an ill or injured employee. Read more online.

Create an email alert

Have alerts sent straight to your inbox and never miss out on an opportunity.

By subscribing you agree to AUTOrecruits Privacy terms.

This website uses cookies to ensure you get the best experience on our website.