At a high level summary, this is an unfair dismissal case concerning a dismissal for serious misconduct. The conduct itself concerned Mr Bista, a part time cleaner for Glad cleaning services who was dismissed for having a cup of coffee at the client's premises prior to starting his shift.
Serious Misconduct is not just a loose term in Australian industrial relations, it is a specifically defined form of misconduct which warrants summary dismissal by an employer. The definition is found under Regulation 1.07 of the Fair Work Regulations and is designed to cover behaviours where an employee has engaged in theft, fraud, assault or engaged in deliberate conduct causing serious and imminent risk to health and safety etc.
Serious misconduct in unique in that there are not only very particular set tests one must meet but also that creates a material disadvantage to employee in regards to their termination. For instance employees are not entitled to notice in lieu of termination as noted in Section 123 (1) (b) of the Fair Work Act 2009 and this also impacts an employee's entitlement to Long Service Leave where they have had less than 10 years service (ACT and TAS being 7 and 15 years respectively as LSL is state based legislation).
With this in mind an employer should be sure they are on sound footing when terminating an employee for serious misconduct as in most cases they would at the same time be making a conscious decision to withhold entitlements the employee would have otherwise received on termination.
In this case the employer made the termination on grounds that Mr Bista engaged in theft stating to Mr Bista in a letter that "Neither the coffee nor the paper cup it was made in were the property of yourself or the Glad Group". Furthermore they claimed that this action this caused a serious and imminent risk to the reputation, viability or profitability of the business in that:
- The tenant expressed distrust towards Glad Group Cleaners; and
- Glad Group's viability depends on it's reputation when tendering for contracts.
I particularly enjoy Vice President Hatcher's reference to the English language when describing how disproportionate the employer's definition of theft was to that of common sense usage in the workplace.
In Mr Bista’s case, I consider that the conduct upon which his dismissal was based was insignificant to the extent that it could not constitute a sound, defensible or well-founded reason for his dismissal. In my view, any reasonable person would regard his conduct as involving no more than a trivial misdemeanour... I prefer to take a more commonsense approach to Glad’s characterisation of Mr Bista’s conduct. In my view describing his conduct as “theft” verges on an abuse of the English language as used and understood by the ordinary person...
Vice President Hatcher goes on to outline a number of mitigating circumstances to assert why this is the case noting points such as:
- Mr Bista had previously shared coffee with his own supervisor and had been invited to have coffee by staff members of the client.
- On the day in question, he made the coffee in front of two employees of the client and chatted with them while doing so. The employees made no objection to his actions.
- The "property" the employer was claiming that was stolen consisted of the "coffee, hot water and a paper cup. They were all consumable items. Their collective value would have been well under one dollar."
- Mr Bista apologised immediately when confronted by the Office and Facilities Manager and explained he did not know he was not allowed to make a coffee. It also appeared by actions of the manager that this apology was accepted at the time.
On the item of "serious am imminent risk to reputation..." etc. Vice President Hatcher interestingly notes that the mere fact that Glad was on a rolling monthly contract with the client and had to undergo a public tender did not substantiate the claim that such a risk existed. Also the Office and Facilities Manager's comment that there was now an "element of distrust" was directed at Mr Bista personally rather than the employer.
This second consideration highlights that employers need substantial grounds to claim such a risk and need to be cautious if the risk is actually concerning just an individual or the organisation. It was also noted that it would not have been difficult for the employer to simply relocate Mr Bista to another site if required.
Vice President Hatcher awarded $9172.20 in damages to Mr Bista in addition to reinstatement, resulting in what ended up being a very expensive cup of coffee.
