A Telstra sales representative with 14 years of service was dismissed for having a side business selling mobile phones. He made an application to the Fair Work Commission for an unfair dismissal remedy, however, after reviewing all the information and facts available, the Fair Work Commission found that the dismissal was not harsh, unjust or unreasonable and the Employee walked away empty-handed.
Both Telstra and the Employee were permitted by the Commission to have legal representation, which is sometimes allowed if the case involves some complexities. The main complexity, in this case, was the fine line between work and out of hours conduct, as well as contractual obligations.
The events leading up to the dismissal were all laid out on the table for scrutiny and judgement by the Fair Work Commission, and the main details of the case are as follows:
- A Telstra Manager became aware of allegations that the employee had been selling mobile phones on the side when a Telstra business customer came into the store looking for the Employee who had sold him a phone privately. The customer was seeking a replacement for a faulty phone he had purchased directly from the employee.
- If proven, this allegation would amount to a breach of Telstra’s Code of Conduct and Conflict of Interest Policy. The employee was invited to an investigation meeting where the allegation was put to him.
- The employee denied these allegations, but did admit to “having sold phones he had in his possession either as new or used and that he had purchased phones in multiples”.
- The Manager continued to gather evidence, and then invited the employee to a second meeting where the evidence was put to him. The evidence included:
- Multiple SMS messages between the employee and an ex-employee confirming he had multiple phones in his personal possession
- The employee’s work internet history showing he had accessed websites to search for the devices, used PayPal for the transactions and uploaded photographs of phones and accessories.
- Screenshots of Gumtree listings showing the employee’s phone number as the point of contact and the photos on the Gumtree listings matching photos found on the employee’s work computer.
- In making their decision to terminate, the Manager concluded that a breach of the Company’s Code of Conduct and Conflict of Interest policy had occurred, specifically that a conflict of interest existed and the Employee failed to seek approval for the conflict, instead denying that he was running a business.
During the hearing’s closing statements, the Commission commented that “It was readily able to be interpreted that this conduct clearly aligned with a perceived or actual conflict-of-interest and presented breaches of the Respondent’s Code of Conduct and Conflict of Interest policy. It has been taken into account that the conduct was alleged to have occurred outside his employment, but I am satisfied there is a sufficient nexus with the Employee’s employment, to bring the conduct within the employment sphere.”
The Employee submitted that the disciplinary response was disproportionate to the gravity of the conduct, however, the Commission refuted this stating that “the Employee’s conduct was directly non-compliant with the Respondent’s Conflict of Interest policy; he did not communicate his selling of these handsets to his Managers, and the private sale of phones.”
To ensure your business would be successful in reaching the same outcome if faced with an employee breaching terms of employment, you must:
- Have a robust Code of Conduct and/or Conflict of Interest Policy, and make sure your employees are aware of and have been trained in these policies;
- Gather evidence behind the scenes before putting the allegations to the employee for their response;
- Follow a thorough investigation process that is procedurally fair; and
- Seek advice before making the final decision to terminate.
We hope you found this article interesting and informative. If you find yourself in a similar situation, seek advice from AssuranceHR.