Is it possible to terminate the employment of a staff member for being the office gossip? Fair Work Australia recently ruled that if an employer is intending to sack an employee based on workplace behaviour, then there is a need for clear definitions of the workplace behaviours that warrant dismissal or disciplinary action. Further, the punishment must fit the crime.
Fair Work Australia (FWA) compensated a childcare worker who was sacked for breaching a “no back biting” policy in the decision of Tara Davies –v- Hip Hop Pty Ltd t/a Hippity Hop Child Care [2011] FWA 776 (4 February 2011).
Hippity Hop Child Care is a child care centre based in Victoria. Last year Hippity Hop summarily dismissed Ms. Davies for breaching a workplace policy, on the grounds that Ms. Davies allegedly called one of her colleagues “lazy” and said that another “wasn’t a competent carer”.
The Hippity Hop workplace policy provided as follows:
“Back biting is NOT TOLERATED at Hippity Hop Childcare; it is unacceptable and can lead to the breakdown of unity between staff within the centre, making it an unpleasant place to work. Any staff member caught back biting may result in immediate dismissal.”
Commissioner Ryan, of FWA, found that the Hippity Hop policy did not define “back biting” and that the evidence before him “suggests that there was not a common understanding of the term” within the child care centre. Commissioner Ryan referred to the Macquarie Dictionary which defined “back bite” as:
“1. To attack the character or reputation of secretly. 2. To speak evil of the absent;
gossip.”
Hippity Hop argued that “back biting” involved making a negative comment about a person, behind their back.
Commissioner Ryan found the Hippity Hop policy was “an extremely blunt instrument” as any “back biting” by an employee made them liable to instant dismissal. The Commissioner said the policy,
“makes no distinction between malicious and untrue comments made behind a person’s back with the clear intention of destroying the person’s reputation and comments made behind a person’s back which are true and which would not result in serious damage to the employee’s reputation“.
The “very bluntness of [Hippity Hop’s] policy means that a mere breach of the policy cannot constitute a valid reason for dismissal“, Commissioner Ryan said.
The Commissioner said the nature and intent of the “back biting” required consideration by the employer. The Commissioner found the comments made by Ms. Davies about her fellow colleagues in this instance, lacked the “necessary odiousness” to justify dismissal and that some form of disciplinary action “well short of dismissal” would have been more appropriate.
Commissioner Ryan took into account that the Hippity Hop policy was aimed at encouraging employees to bring issues and complaints to management rather than back biting or gossiping behind their backs. However, he noted that when Ms. Davies complained to the Hippity Hop’s Centre Director about conduct of another employee (who happened to be the Director’s sister) that allegedly threatened the safety of the children, no action was taken by the Director.
The Commissioner said the evidence led him to conclude that Hippity Hop simply did not have the framework in place to deal with complaints by staff. The Commissioner also identified deficiencies in the procedural fairness of the dismissal of Ms. Davies and he criticised the Hippity Hop’s management for “concocting” a letter a month after Ms. Davies’ dismissal that added an additional two (2) reasons for her dismissal that were not previously advised to her.
The Commissioner ordered Hippity Hop to pay Ms. Davies $9,480 in compensation.
EMPLOYER – LESSONS LEARNT
When creating workplace policies and procedures be aware of the following;
- Define the action(s) that are prohibited clearly and completely (and within guidelines of relevant legislation),
- Ensure that all staff are provided with the policy and understand and have read its contents,
- Ensure all processes are explained in the policy document, eg. explain the process of making a complaint,
- Who to complain to,
- Form of complain – in writing,
- Nominate witnesses,
- Management of complaint,
- Who will investigate,
- Timeframes,
- Maintain confidentiality,
- Findings,
- Actions – consequences for breach of policy must be clearly communicated in the policy,
- The forms of disciplinary action must be explained – counselling, warnings, dismissal (at all times the policy must provide the employee with procedural fairness, and includes opportunity to respond fully to allegations),
- Ensure the punishment fits the crime.
- The policy must be applied consistently across all staff.
Preparing workplace policies and procedures is an important task, particularly if the employer wishes to rely on the policy to discipline an employee, including terminating their employment. It is worthwhile taking time to devise policies carefully and thoroughly, and seek professional advice to ensure that the policy is suitably robust and procedurally fair.