In a recent decision of the Fair Work Commission (FWC) (B v Conair Australia Pty Ltd [2016] FWC 6520) a HR manager was found to have been fairly dismissed after taking her personnel file from her employer’s premises and not returning it when directed to do so.
Up until her suspension, the HR manager had a good work record, but an issue with a fellow manager during and after a particular meeting resulted in the HR manager being placed on “special leave.” On her way out, the HR manager removed her own HR file from the employer’s records and took it with her.
During the period of “special leave”, on a number of occasions, the employer’s solicitors wrote to the HR manager’s solicitors requesting that the HR manager return the personnel file or provide information about its whereabouts. In those letters, the HR manager was put on notice that failing to do as directed may breach her duties as an employee and as a result, her employment may be at risk.
Neither the employer nor its solicitors received any response regarding the personnel file for some time and so, the employer made the decision to terminate the HR manager’s employment. The reasons given for the decision were the HR manager’s misconduct in failing to follow a lawful and reasonable direction given by the employer. Namely, the HR manager did not return the personnel file or provide information about its location when directed to do so.
The HR manager then made an unfair dismissal claim arguing that she took the file to protect herself because she was concerned that it would be altered. The HR manager also argued that the employer didn’t have a valid reason for dismissing her because she didn’t receive its direction to return the file – apparently her solicitors never passed on the message.
The FWC found that it was reasonable for the employer to assume that the complete failure on behalf of the HR manager and her solicitors to respond to the employer’s demands for the HR file to be returned represented a deliberate refusal to comply with the employer’s lawful and reasonable directions. Furthermore, the HR manager didn’t return the file until the morning of the first day of the FWC hearing. The FWC said that this conduct alone was enough to establish a valid reason for dismissal.
The FWC ultimately held that the dismissal was not unfair and dismissed the HR manager’s claim.
This case should give employer’s confidence that if they issue a reasonable and lawful direction to an employee but receive no response, it can look to take disciplinary action against the employee, up to and including the termination of their employment.
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