The Fair Work Commission has highlighted that “employer policy documents and manuals must be accessible, understandable and reasonable in their terms”. In a recent ruling that returned an employee to her job and restored most of her lost pay after finding her dismissal was harsh, unjust and unreasonable.
Deputy President Michael Easton found Western Sydney Migrant Resource Centre’s dismissal unfair because of the “long, complex and legalistic” policy manual it relied on and its “haphazard” mobile phone procedures. He found the policy the employee breached “might make sense to copyright lawyers and some IT specialists, but probably no one else”.
The decision is a timely reminder to employer of the risks in terminating staff for not following complex and legalistic policy manuals.
The employee, a specialist intervention services manager, was terminated for deleting data from its mobile phone.
When the manager took leave at Christmas in 2021 she deleted data from an on-call phone before leaving it with a colleague.
When she returned from leave, the organisation suspended her for deleting data and gave her a “show cause” letter.
After the show cause meeting, the Western Sydney Migrant Resource Centre summarily dismissed the manager.
Western Sydney Migrant Resource Centre is a sub-contractor for Settlement Services International Limited (SSI) , which is contracted by the Department of Social Services to provide support to refugees and migrants.
In its evidence, Western Sydney Migrant Resource Centre relied on the SSI contract, which prohibits the destruction of client records and its procedure manual’s section on the appropriate use of IT systems, which prohibits data removal without authorisation.
However, the manager claimed that the on-call phone contained no client records because her clients called her on her other work mobile, even outside of office hours when they were supposed to call the on-call phone.
The deputy president found her explanation “rational and plausible”.
Deputy President Easton found that erasing the contents of a work-issued device without authorisation provided a valid reason for dismissal, and accepted that there was “at least a possibility that there were client records on the on-call phone,” although the likelihood was “low”.
“The potential damage this conduct could cause is reasonably obvious: the employer is deprived of the opportunity to inspect the device, it may compromise Western Sydney Migrant Resource Centre’s record keeping systems and potentially its contractual obligations to retain records,” he said.
The deputy president found the “terminology in [the IT procedure] is legalistic, complex and more commonly found in a commercial or government contract than in a document used by workers in a migrant assistance agency” and said “the reference in the Western Sydney Migrant Resource Centre procedure manual to deleting data or information held on mobile phones is far from clear or obvious”.
He noted that a “broad literal reading” of the procedure would include data stored on a mobile phone but advised “if deleting information on a mobile phone was regarded by Western Sydney Migrant Resource Centre as serious misconduct, its stated policies should have unambiguously spelt out the requirements for retaining and preserving information held on mobile phones and the very serious consequences for not complying with those requirements”.
Deputy President Easton highlighted the lack of evidence showing that Western Sydney Migrant Resource Centre ensured that its employees actually read and understood the Western Sydney Migrant Resource Centre procedure manual, and expressed “serious reservations” about whether the manager would have understood the IT procedure, given the “wording of the manual” and the fact that English is not her first language.
The deputy president underlined that “the written policy had no connection at all with the Western Sydney Migrant Resource Centre’s everyday practices regarding phones”.
The manager’s former supervisor gave evidence that when workers left Western Sydney Migrant Resource Centre she would restore their work phones to their factory settings, cleansing them of their data and said “this deletion of information on Western Sydney Migrant Resource Centre mobile phones was routine and not controversial”.
Western Sydney Migrant Resource Centre also failed to preserve information stored on mobile phones, with no procedures requiring workers to back up phone data.
Deputy President Easton said that Western Sydney Migrant Resource Centre failed to properly investigate whether the manager had deleted client records.
He found her dismissal harsh, unjust and unreasonable and said “it seems that Western Sydney Migrant Resource Centre simply made a bad judgment call to dismiss her so swiftly”.
Deputy President Easton reinstated the manager with continuity of employment, and restored her pay with a 25% reduction for her misconduct.
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