A summary of workplace misconduct decisions from October 2019

 A number of interesting decisions involving workplace misconduct were delivered last month. Here is a summary of the key points that may be relevant for anyone dealing with misconduct allegations.
 
Treat every misconduct allegation fairly
 
In Sathananthan v BT Financial Group Limited, the Fair Work Commission found that an employee had been forced to resign after he was overworked and his allegations about a colleague's misconduct were not managed properly. The situation was complicated because the employee and the colleague had been in a relationship and then made allegations against each other after it ended. The employee did not seek reinstatement and was awarded compensation of about $46,000. For more on that case, see our note here.
 
Not every process failure will make a dismissal unfair
 
In Reseigh v Stegbar Pty Ltd, the employer had spent a long time (over 2 years) trying to support the employee through a difficult period in his life. Eventually the employer decided to dismiss the employee for poor attendance at work. The Fair Work Commission found for the employer despite identifying two issues that would ideally have been handled differently. For more on that case, see our note here.
 
Disciplinary action where there is uncertainty about what happened
 
The dangers of restoring power after a storm featured in Peto v Ausgrid Management Pty Ltd. In that case, power to a house was reconnected incorrectly. The occupant immediately reported smoke coming out of a wall and a phone charger being ejected from a power-point. Happily no-one was hurt. Employees gave conflicting accounts of what happened and the workplace investigator could not determine which one of three employees actually made the faulty connection. Despite this uncertainty, the employer issued warnings to all three employees on the basis that they had all failed to communicate effectively. One of the employees challenged the warning given to him. The Fair Work Commission found that the employer’s decision was reasonable. For more on that case, see our note here.
 
Experience can count both for and against an employee
 
The decision in BlueScope Steel v Habak highlights that an employee’s long service may count against them because there is an expectation that experienced employees will follow their employers’ policies and processes. For more on that case, see our note here.
 
Criminal conduct and workplace misconduct are different things
 
In Bobin v Commissioner of Police the NSW Industrial Relations Commission considered a case where a police prosecutor was dismissed following allegations involving domestic violence. The employee argued that allegations of misconduct were not made out as he had been acquitted of related criminal charges. The Commission rejected this argument and highlighted the differences between criminal matters and misconduct allegations. For more on that case, see our note here.