Casual employment as swim instructor
A swimming school, called Swimmers, in Victoria competed with three other swim schools in their area and they were open at the same time as public schools.
The school had hired a 19-year-old swimming instructor on a casual basis sometime in 2017. Although permitted to work from that time until January 2020 at Swimmers, the instructor was not given a written employment contract.
The instructor was paid $21.50 per hour and she was allowed to work between 2-13 hours every fortnight. She worked for another rival swim school on a casual basis, as well.
JobKeeper benefits
When Swimmers was closed due to the Covid-19 pandemic, the instructor was paid JobKeeper benefits. When she received the JobKeeper payments, she was allowed to work 23.5 hours every fortnight since 9 November 2020 when Swimmers restarted business operations. She was entitled to at least $651.00 in JobKeeper benefits until March 2021.
Recommending a rival swim school
One of the co-workers of the instructor browsed Facebook in January 2021 and saw a private group of residents of their area.
One member of the private group had asked the other members of the group for a recommendation.
That co-worker recommended Swimmers where she worked. After that, she began receiving notifications from that particular Facebook page and notifications for other reply posts to the same question.
One of the replies to the same question was from the 19-year-old swimming instructor and she recommended a rival swim school. The co-worker then took a screenshot of the 19-year-old’s post and sent it to the instructor’s work manager.
Discussing the post
The manager called the 19-year-old instructor to discuss the post. After that conversation, the manager recommended to the owner of Swimmers to terminate the employment of the 19-year-old instructor.
The manager then called the instructor to a meeting but she was unable to attend the meeting. The manager then called the instructor by telephone and questioned her about her post in the private group.
The instructor was unprepared for the meeting and she did not know that her post would be discussed.
She could not even remember the post or what the post was about. She explained that she had not intended, by that post, to put Swimmers in a bad light.
She had posted using her own personal Facebook account and her post settings were on “private.” No one knew from her Facebook profile that she worked for Swimmers or for the rival swim school she had recommended.
Termination by phone call
The manager advised the instructor that her post was an act of disloyalty to Swimmers and that her post had discriminated against Swimmers. As a consequence, she was to be terminated the following day.
The instructor tried to get a lesser penalty such as a warning because she had no intention to damage the business of Swimmers. The day after their phone conversation, the instructor received a letter of termination. The letter notified the instructor that she was being summarily dismissed for having worked for multiple swim schools and provided an unsolicited recommendation for another swim school.
Application for unfair dismissal
The instructor filed an application with the Fair Work Commission (FWC) for unfair dismissal.
She had asked for payment of lost income and damages but had not asked for reinstatement.
The FWC found that the instructor enjoyed protection from unfair dismissal as Swimmers fell under the category of a small business.
The FWC found that a summary dismissal under the Small Business Fair Dismissal Code was justified only when there was a serious misconduct. A serious misconduct may be an act of theft, fraud, violence or serious breaches of occupational health and safety procedures.
Requirement of notice and opportunity to respond
For the dismissal to be valid, Swimmers should have provided the instructor with a warning letter giving her detailed reasons why she may be at risk of being terminated. The reason must be valid and it must be based on the instructor’s conduct or capacity to do the job.
The instructor must have also been warned that if she did not improve, she will be dismissed. The instructor should have been given the opportunity to respond to the warning and she should have been provided the opportunity to correct the problem.
While during the phone call with her manager, the instructor was allowed to explain why she should not have been dismissed, at the time of the phone call, the manager and the owner of Swimmers had already decided to dismiss the instructor and nothing she said would have altered their decision.
At the time that the instructor was to be dismissed, she should have been allowed a support person.
In that letter, Swimmers described the behaviour as unsatisfactory and disloyal without identifying what exactly the conduct had been.
Therefore, Swimmers had not complied with the requirements of providing detailed reasons for the intended dismissal or for giving the instructor the opportunity to respond or rectify the problem. She was also not allowed to have a support person during the meeting when she was dismissed.
Not an act of serious misconduct
More importantly, the FWC found that while the instructor’s act of recommending Swimmer’s rival swim school aggrieved the owner of Swimmers, and while Swimmers believed that the instructor had been disloyal in recommending Swimmers’ rival, it cannot be considered serious misconduct in light of the circumstances.
The post was not wilful or deliberate behaviour and it did not pose a serious and imminent risk to the reputation, viability or profitability of the employer’s business.
Serious misconduct must be of a grave nature and it must be repugnant to the employment relationship. It is a wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract. It must show that the employee intended to repudiate the contract of employment.
Technically, not an act of breach of duty of fidelity
The instructor had an implied duty of fidelity and good faith to her employer, but for her act to be considered to have breached the duty of fidelity, it must have created a conflict between Swimmers’ interests and that of the instructor’s. The act would have damaged the confidence of Swimmers as to the future conduct of the instructor.
The duty of fidelity includes the duty not to disclose or use for personal gain any confidential information; not to act dishonestly in handling the employer’s property; not to earn secret profits; not to engage in employment with a competitor that may damage the employer’s business.
Instructor posted without thinking first
In the end, the FWC found that the instructor reply post was naïve, ill-judged and regrettable. The instructor had not thought carefully before making a post on the consequences of her post. But, the FWC found that the applicant said nothing bad about Swimmers in her post.
Swimmers was unable to show that it had suffered harm or damage because of the instructor’s post and there was no evidence of how widely read the post was.
Swimmers had not provided the instructor with guidelines or policies and procedures regarding conduct expected and required of her as an employee.
The instructor was only 19 years old. She had worked for both Swimmers and the rival swim school and she did not understand that recommending either would likely be a breach of her contractual obligations to both. There was no evidence of any deliberate or malicious intent.
The instructor won her unfair dismissal claim.
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