FWA Orders Employee be Reinstated Despite ‘Relatively Serious Misconduct’

On Monday 8 February 2010 in Melbourne, Vice President Lawler of Fair Work Australia ordered Mr Paul Quinlivan, a dismissed employee, be reinstated despite finding ‘relatively serious misconduct’.

Mr Quinlivan was employed with Norske Skog Paper Mills (Australia) Ltd in Albury from 1990 until he was dismissed on 7 September 2009.  He was dismissed for two counts of misconduct, being (i) repeated failure to wear compulsory personal protective equipment in the form of safety glasses; and (ii) refusal to obey lawful direction by not modifying and using a tool.

Whilst the count of refusal to obey lawful direction was not sustained, the Tribunal held that the repeated failure to wear safety glasses, despite repeated instructions and his abusive responses to such instructions, constituted a valid reason for dismissal and amounted to ‘relatively serious misconduct’.

However, the Tribunal found the dismissal to be harsh in that it was ‘a disaster’ for Mr Quinlivan.  In doing so the Tribunal weighed the personal and economic situation of Mr Quinlivan against the employer’s legitimate interest in minimising its risk to litigation through safety measures.  Whilst it found that employers are obliged to take conduct exposing them to civil liability seriously, and to have employees take safety rules seriously, they must also take account of the offending employee’s particular circumstances when deciding whether or not to terminate.

In this case the Tribunal determined that the termination was harsh when balanced against Mr Quinlivan’s age of 44, poor educational qualifications, the fact that he had two dependents aged 9 and 11, a mortgage of around $70,000, a wife suffering from depression only earning approximately $6,000 per annum and that he had been employed by his employer for some 20 years.

The basis of the decision was the principle that a dismissal may be harsh but not unjust or unreasonable in that it “may be harsh in its consequences for the personal and economic situation of the employee”: Byrne and Frew v Australia Airlines Pty Ltd (1995) 185 CLR 140.

The Tribunal ordered Mr Quinlivan to be reinstated and receive compensation for loss of wages. However, as a form of sanction, he was denied full compensation for his loss of wages.

This case highlights the numerous considerations, including personal circumstances, to be taken into account when terminating an employee’s employment.

By Stephen Curtain and Rachel Hocking.