A general manager who was dismissed for serious misconduct for making disparaging comments about the company’s directors during a potential transfer of business recently failed in his general protections claim under the Fair Work Act 2009 (Cth) (“FW Act”).

The employee did however succeed in his argument that the termination for serious misconduct was a breach of contract thus entitling him to damages equating to what the court assessed to be reasonable notice (in the absence of a written employment contract).

The court confirmed that serious misconduct need not amount to repudiation of the employment contract but in doing so found that the alleged disparaging comments to the prospective purchaser in the circumstances were not sufficiently serious to justify summary dismissal as it was not “deliberate significant wilfulness or dishonesty or aimed at scuttling the sale.”

The adverse action element of the claim was unsuccessful in large part due to the fact that it was not clear what “workplace right” the applicant was relying on. In coming to this conclusion the court differentiated between an actionable inquiry “in relation to employment” as against inquiries to a potential employer about future employment (such as in this case) which would not satisfy the legislative hurdle.

Impact on Employers

Employers should take comfort in the court’s position that the reverse onus of proof in the general protections provisions of the FW Act demand that the employee must clearly articulate that an adverse action was taken for a proscribed reason.

Practical Tip

The case is also a stark reminder of the importance of having up to date written employment contracts that include express terms on what may amount to serious misconduct as well as notice periods for termination.

For more articles from this edition of INNANGARD ALERT, click here

People + Culture Strategies (Australia)

Kathryn Dent, Director
Tel: 02 8094 3107

David Weiler, Associate
Tel: 02 8094 3123