The Fair Work Commission has addressed the issue of what constitutes serious misconduct and determined it really does need to be serious before an employee is terminated.

An intellectual property firm got it wrong when an employee’s summary dismissal switched from highlighting his deficient performance to alleging conduct of “dishonesty” over time spent browsing the internet “for items of personal interest”, the Fair Work Commission has found.

The IP firm sacked a lawyer using a disciplinary process that began with his slow and inappropriate handling of a client matter involving patenting a new invention.

When questioned about the client’s complaints, the attorney responded by writing “fair enough” and telling his manager “I’ll excuse myself from this. . . [so] give it to another colleague”.

After attending a Microsoft Teams meeting from home to discuss his “lack of performance”, the firm suspended him for his “aggressive and abusive” manner and invited him to a further meeting with its HR consultant and one of its two founders.

Refuting that he had been “aggressive and abusive”, the lawyer said that he had notes from his support person – his girlfriend – to prove it.

The HR consultant responded by telling him that he that he should have made it clear in the meeting to the firm that he had a support person present, because “we need to remind that person of the nature of their role and of the confidentiality of the meeting”.

Soon afterwards, the firm’s manager issued him a final warning alleging that his “lack of communication with the client and with me, as principal of the firm, has brought the firm into disrepute and has damaged its reputation”.

The lawyer provided his “formal response” to the matters raised during his Teams meeting at the subsequent meeting with the HR consultant and co-founder.

The firm summarily dismissed him four days later, with the co-founder writing that during their meeting “you explained that you were not able to give full consideration to the substance of the clients reply dated April 19, 2023 because you were otherwise busy with other work and pressing deadlines”.

The co-founder continued that “as part of our investigation into the matter, we have found your explanation to be untrue”, attaching in support a spreadsheet showing his browsing history.

The employer switched to the argument that the employee had been surfing the internet rather than being otherwise engaged with other work.

“[This show] that you had ample time on each of the relevant days to give full consideration to the substance of the client’s reply,” the co-founder wrote.

“You chose not to do so.”

“Instead, you chose to spend substantial time browsing the internet for items of personal interest to you.

“Your explanation to us as to why you could not give full consideration to the substance of the client’s reply was dishonest.

“Your dishonest conduct during the disciplinary process amounts to serious misconduct.”

Commissioner Matheson, in weighing whether the employer had a valid reason for the attorney’s dismissal, found it “related” to both his performance and conduct.

While ultimately accepting that the lawyer’s poor performance and unsatisfactory conduct when the performance issue had been brought to his attention provided a valid reason, the commissioner said that the actual reason given for his dismissal “was that he was dishonest in the disciplinary process” when he said other deadlines prevented him giving full attention to the client’s email, when he had been in fact browsing the web at the time.

“I do not consider the browsing history to be enough in itself to establish serious misconduct, particularly in the modern, digitally-connected era where employees may sporadically access the internet for both work related and personal purposes across their working day,” Commissioner Matheson said. (my italics)

“I also consider that the browsing history together with the response of the [lawyer] does not lead to a conclusion of dishonesty, particularly as I am not satisfied that the time required to be spent in relation to the [client] matter equates to the time spent browsing.

“If [the firm] had sought to dismiss the [lawyer] on conduct related grounds relating to his browsing history and alleged dishonesty, it should have put that concern to him and given him an opportunity to respond before it dismissed him summarily.

“The [employer’s] actions in bringing a swift end to the [lawyer’s] employment upon discovery of the browsing history have resulted in procedural deficiencies in relation to the dismissal, including a failure to notify [him] of the reason for dismissal that I have found as being the actual and valid reason for the dismissal.”

The “abrupt” nature of the dismissal made it a harsh dismissal, the commissioner awarded the lawyer $3115 compensation.

Lessons for employers

Dismissals for serious misconduct are for such serious offences as assault, drug use, fraud and theft. Do not exaggerate a small offence as a justification for dismissal as the consequences of ‘making a mountain out of a molehill’ could costs you money.