By Peter Hughes:
In issue 10 of Cruwsible UWS Student Legal published some very good advice about what to expect in the workforce and it took me back to a past life when, as administration manager of a trade and industrial association, I had the job of writing a weekly industrial relations newsletter for our members. To do this I kept up with what was happening in the Industrial Relations Commission and Fair Work Australia. Often I was struck by the extent to which the parties before the Commission or FWA did not have at least a basic understanding of their rights and obligations under the law, particularly regarding that good old dragnet charge of Misconduct, and these made interesting and sometimes hilarious reading.
As Student Legal pointed out, an employment contract and its attendant obligations can be written or oral, but oral agreements cannot always be safely relied upon in the event of dispute, as both parties will inevitably have differing recollections and interpretations of what was said. (The film producer Sam Goldwyn used to say that a verbal agreement isn’t worth the paper it’s written on.) Therefore it’s always best to get a written agreement. Even this, however, can’t cover all the rights and duties of employers and employees, as common-law principles of contract come into play and by definition are not usually found in any written document.
Both employers and employees have a common-law duty of care towards each other. At the very least employers must provide a safe and secure working environment (in practice this is usually covered by occupational health and safety laws); and employees must act conscientiously and without damage to their employers’ business. It is this requirement that I found occupied much of the courts’ time and caused so much heartache to those who failed to observe it. There isn’t the space here to go into every case but here are a few of the more unusual ones.
One of the earliest I came across was an employee who, aggrieved by her boss’ decision about something or other, published her vigorous assessment of his character on Facebook. She appealed against her subsequent dismissal, saying that the posting could only have been read by her Facebook friends. The judge, however, pointed out that Facebook is a public forum and in any case her opinion had been relayed by a Facebook friend (!) to someone else, who tipped off the boss. Whether or not the posting had been widely circulated on Facebook the judge held to be immaterial: the employee had exposed her employer’s business to risk of loss or damage; she had failed in her contractual duty of care towards her employer; and that was enough to get her the sack, to put it brutally.
What constitutes misconduct will depend on the alleged facts and what previous courts have ruled. As if establishing misconduct isn’t difficult enough, courts and Conciliation Commissioners are free to rule that mitigating circumstances exist and can overturn or reduce penalties otherwise payable. In one extraordinary case a tram conductor was dismissed for forcibly ejecting an abusive and threatening passenger: in other words, the conductor threw him off the tram! On appeal, the Conciliation Commissioner reversed the conductor’s dismissal, holding that the conductor, who was very young, had been severely provoked and would be unlikely to offend again. True, the conductor could have been charged with assault, but that is another matter: the point here is that he genuinely believed he was acting in his employer’s interest by removing the threat to other passengers and not delaying the tram. It would not be wise, however, to rely too strongly on this precedent in a similar case in future!
Employment law, like all law, may be influenced by circumstances, like those shown above, and changing social attitudes. I am old enough to remember when the boss’ shouting at junior employees was par for the course, and heaven help you if you answered back. Now swearing and abuse by anybody is tolerated less and less at work; and blasphemy calculated to cause offence to a person’s religious beliefs is probably in the same category. While committing either of those and similar offences for the first time will probably result in a reprimand and warning of stronger action if it occurs again, the one act that will almost certainly result in instant dismissal is using the office computer to access pornography. That charge is almost impossible to defend. In one case the employee appealed against his dismissal on the ground that a warning against use of office equipment for pornographic purposes had not been included in his employment contract. The judge rejected that argument out of hand, observing that sufficient social conventions exist for him to be aware that what he was doing was quite wrong.
So, is staying in a job like walking on eggshells? Not really, but you have to work hard and honestly to keep it. Minor transgressions and mishaps are bound to occur from time to time and will not incur anything more than a ticking-off and “don’t do it again”. Explain and defend your actions by all means, but do so respectfully and courteously. In most cases ordinary good manners will get you through. The saddest cases are those where a judge has held that an employee has been unfairly dismissed, but reinstating his or her employment was pointless because he or she had behaved so badly when dismissed that resumption of normal employer/employee relations was impossible. We all have to weigh up difficult situations from time to time, and may have to seek professional advice from Student Legal or someone else. But, pending that advice, remember the so-called Biblical Golden Rule: do unto others as you would have them do unto you. That phrase isn’t actually in the Bible, but it’s good enough for now!
Peter Hughes is a BA (History) Honours student at UWS.
IMAGE: Maia C