By
Mike Toten
Mike Toten is a freelance writer, editor and media commentator.
The FWC found the Gold Coast cabaret club exaggerated the gravity of the workers' misconduct and also deceived them as to how it had discovered their conversations. The Commission said that it had treated a minor breach of confidentiality as “like Watergate” and awarded compensation to both employees.
Facts of case
The employees were a box office attendant and a bartender. They were called into separate meetings, accused of breaching confidentiality and both summarily dismissed.
The two employees had communicated via a private social media conversation during which one disclosed the pay rate of a co-worker who in turn revealed it to another co-worker. The box office attendant had sent the pay information to the bartender after a third employee told her at a social function that their co-worker had received a pay increase. The latter employee had not authorised her to disclose information about her pay.
However, the bartender was told that someone had sent management some screenshots of “some conversations on social media”. In fact, the partner of one of the business owners had accessed private social media messages from the old work phone of a former co-worker (the one the bartender revealed the information to) without her consent and used it to trap the bartender into admitting the box office attendant was her source of information. Both employees were told they had committed “criminal offences”, but not what their “crimes” were.
The bartender was unaware that the attendant was not authorised to share the pay information, and neither employee appeared to understand that the information was confidential. Therefore, the FWC said they did not deliberately disclose confidential information.
Decision
The FWC likened the employer’s portrayal of the breaches of confidentiality as “akin to Watergate”, treating it as if the employees had broken into a security complex, stolen intellectual property secrets, and posted the information on Wikileaks. In fact, the employees had privately discussed the pay rate of a friend and the rate itself was “unremarkable”. It appeared that the business owners were offended by what the bartender was saying privately about some aspects of the club.
By lying about how management had obtained information about the conversation, they had ambushed both employees at their respective meetings. Due to that and other procedural errors by management, the information provided by the employees was compromised. If the bartender had not been trapped into revealing the attendant was her source of information, the employer may not have been able to take any action against the attendant. Overall, there was not a valid reason for either dismissal.
The FWC commented that the manager’s action of accessing the employees’ private messages was more serious misconduct than that of the two employees.
The attendant was awarded compensation of $18,525 and the bartender $12,855 plus superannuation.
What this means for employers
Performance management and dismissals must be implemented in a procedurally fair manner. Using “ambush” or “divide and conquer” tactics, or deceiving or lying to employees will very likely become evident if an employee pursues an unfair dismissal or adverse action claim, to the detriment of the employer’s defence.
Read the judgment
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