Whatever your feelings toward Trump, his campaign was one of the most significant talking points of 2016. Indeed, one of the (many) interesting things which have emerged from it is that many American voters who supported Trump did so, at least in part, because they believe he will run America like he runs his global business empire.
So, in recognition of Trump’s inauguration, we take this opportunity to reflect on some workplace issues highlighted in recent cases through the (light-hearted) lens of Trump’s campaign policies. We hope you will find some takeaways to help you make your workplace “Great Again” in 2017.
No tolerance for the ‘locker room talk’ defence
The Fair Work Commission recently rejected the ‘locker room talk’ defence (in this case, reframed as the ‘workplace culture’ defence) in a case involving an airline cabin crew supervisor1 who was found to have:
- shown explicit images of a colleague to other crew members
- repeatedly made inappropriate and unwanted sexual comments and advances to a number of crew members
- made lewd observations about passengers.
Following an investigation, the airline decided that the supervisor had breached its equal opportunity (EEO) policy and code of conduct and terminated his employment. In his defence, the supervisor argued that he was merely a “patsy” for the airline’s “out there” workplace culture.
However, the employer was able to show that the supervisor had contractually agreed to comply with its policies and to conduct himself in accordance with the airline’s values, had undergone training and was otherwise aware of the company’s EEO policy and conduct requirements, particularly for supervisors.
Against this background, the Commission held that the airline had fairly dismissed the supervisor for serious misconduct.
This decision highlights the need for employers to ensure that they have a clear and comprehensive policy in place regarding sexual harassment and behaviour generally, that employees are aware of the contents of that policy and that steps will be taken to enforce it.
When it comes to ‘draining the swamp’, take care to consider all the circumstances
The employer of a coal mine worker who was sacked for having made various inappropriate and in particular, anti-Muslim comments, over the employer’s radio system while on night shift has learnt that terminating the employment of an employee (even one whose conduct falls well short of the standards set out in the workplace code of conduct) can be a fraught process2.
Despite the worker’s apology for his comments (which he downplayed as those of “blokes having a laugh”), his employer decided that his conduct was unsafe and highly inappropriate and sacked him, along with the other employee who participated in the conversation.
The Commission found that there was a valid reason for the dismissal and that the comments were “inappropriate, unacceptable and offensive”. However, the dismissal was found to be harsh for other reasons (including the worker’s length of service, his otherwise good employment record and the economic impact of dismissal), and the Commission ordered his reinstatement.
On appeal, a full bench of the Commission upheld the worker’s reinstatement, with the majority finding that whilst serious breaches of a workplace policy (in this case, BHP Billiton’s Code of Business Conduct) will often constitute a valid reason for dismissal, employers should not assume that a clear breach of policy by an employee will, in every case, provide a valid reason for dismissal that is not harsh, unjust or unreasonable.
As such, it is important for employers to remember that a valid reason for the dismissal is only part of the equation in how the Commission deal with unfair dismissal applications. Equally important are considerations as to whether a dismissal is otherwise harsh, unjust or unreasonable, which can be wide-ranging.
The 3:00 am ‘tweet’ and dealing with out of hours online conduct
Whilst Alec Baldwin may not have been too troubled by the President-elect’s late-night twitter rampage against his Saturday Night Live parodies, many employers struggle with conduct that takes place online, where the lines between the workplace and personal life are blurred.
A mine operator recently had to deal with a series of offensive Facebook posts by employees3. The offending posts involved a photo depicting a supervisor (who had been the subject of ongoing bullying), on which a number of other employees commented, including the applicant, who was not on shift at the time.
Following an investigation into the Facebook posts, (which was the most recent of a string of bullying incidents directed towards the supervisor), the employer terminated the applicant’s employment on the basis of the Facebook posts, which it said breached the company’s policy and workplace standards and threatened the employer’s reputation.
Given the nature of modern workplaces, in which co-workers are often connected or linked in to one another through social media, the Commission’s approach is that an employer will only be able to extend supervision over the private activities of its employees in exceptional circumstances and where there is a relevant connection to the employment relationship. This involves consideration of whether the conduct:
- is likely to cause serious damage to the employment relationship
- damages the employer’s interests, or
- is incompatible with the employee’s duty as an employee
While the Commission accepted that there was a connection to the employment relationship in this case (and agreed that the employer had a valid reason for dismissing the employee), it nonetheless found significant procedural unfairness in the employer’s decision-making process which rendered the dismissal unfair, as the employee was not given an opportunity to respond to the full range of reasons for dismissal.
Where unacceptable conduct takes place online (and outside of working hours), employers need to ensure that there is a valid reason for dismissal sufficiently connected to the employment.
While the breach of a company policy will not automatically give rise to a valid reason for dismissal, employers who have implemented comprehensive policies dealing with social media, bullying and harassment (which include warnings that breaches may lead to disciplinary action) will be well placed in this regard.
Kerryn Tredwell is partner and Jane Silcock a lawyer at Hall & Wilcox.