Secretly recording disciplinary meetings with your manager is a valid cause for dismissal
Case background
A casual sales assistant was hired and began work on 25 June 2018. Among her duties were assisting customers, making sales, replenishing stock and engaging in customer service. Until January 2019, the employer had no complaints about the performance of the sales assistant.
The sales assistant worked between 20-25 hours per week. During the peak Christmas period, the sales assistant worked about 50 hours a week. After this, her hours of work had been slightly reduced after the Christmas holiday. She did not complain as she felt she needed a little reprieve after the peak Christmas shopping season.
Absence from work due to illness
The sales assistant was absent for two days in February because she was sick with the flu. In February 2019, however when she returned to work, the sales assistant saw that she was given only 1 5-hour shift. The sales assistant complained that her work hours had been further reduced. The Store Manager asserted that the sales assistant was absent from two shifts and rejected another 5-hour shift offered to her. Her unavailability was the reason why she was not rostered for more shifts.
The sales assistant explained that she was absent because she had the flu and was not in any state to call or to respond to the Regional Manager who was trying to call her to confirm her unavailability. Although, the sales assistant did send the Store Manager a text message informing her that she was sick and could not come to work. While there was a store policy that prohibited employees informing a supervisor by text that they cannot attend work, prior to this incident, the sales assistant communicated with the Store Manager by text message and she was never reprimanded for doing so.
Work hours reduced because of her absences and unavailability
After she was informed by the Store Manager that her absences and her failure to follow the procedure for informing the store manager that she will be absent were the causes that her work hours had been reduced. The sales assistant protested that reducing her work hours was unfair especially since she was absent due to illness.
When the sales assistant next reported for work, still feeling ill, she was told that the Regional Manager wanted to speak with her. The sales assistant wondered to herself why the Regional Manager wanted to speak with her. She decided to record the conversation without telling the Regional Manager.
Accusations of disrespect, insubordination and intimidation
On 27 February 2019, the sales assistant received an allegation letter. She was accused of being aggressive toward the store manager. At a meeting called to inform her of the accusation regarding her absences from work, the sales assistant denied the accusation and the Store Manager did not provide any evidence of any complaint that the sales assistant was aggressive toward her.
The sales assistant was called to a meeting on 1 March 2019 and she was given the opportunity to respond to the allegations against her. She was even allowed to bring a support person. However, when the sales assistant gave them the name of her support person, the Human Resources Officer refused stating that her support person was part of the investigation committee.
Manner of dismissal was incompetent
The sales assistant asked for more time as the support person she had chosen was on leave on the dates that the incident took place, the Human Resource Officer told her that the sales assistant’s failure to attend will result in her suspension. The sales assistant asked that the meeting be rescheduled as she only had 24 hours within which to prepare a response to the allegation letter but the Human Resources Officer went ahead with the meeting anyway without the presence of the sales assistant. She was dismissed within two hours of the meeting.
Reasons for the termination
In the letter of termination dated 1 March 2019, the sales assistant was accused of failing to notify her Regional Manager by text of her inability to attend work on 14 February 2019. She was also accused of having been disrespectful, insubordinate and intimidating toward her Store Manager as the sales assistant reiterated her complaints about the reduction of her work hours that had already been found to be unsubstantiated. The Regional Manager felt threatened by the sales assistant. The third allegation against the sales assistant was continuing to be disrespectful, intimidating and insubordinate in an email she sent to her Regional Manager.
Application for unfair dismissal, initially dismissed
The sales assistant lodged an application for unfair dismissal on 4 March 2019. The employer did not contest the facts except it raised the jurisdictional question of whether the casual sales assistant was an employee who was protected from unfair dismissal. At first, a Commissioner ruled that, indeed, the sales assistant was a casual employee who had no reasonable expectation of continuing work and so, she was not protected from unfair dismissal.
Application for unfair dismissal reinstated after appeal
The sales assistant appealed that decision to the Full Bench of the Fair Work Commission which found that the sales assistant, although at the time was hired as a casual sales assistant was allowed to work beyond six months and since the employer was a retail establishment, it was always in need of the services of sales assistants. Thus, the applicant had a reasonable expectation that her employment would continue.
Secret audio recording of meeting with Regional Manager produced as evidence at trial
During the trial, the sales assistant produced an audio recording of the conversation with the Regional Manager. The Fair Work Commission found that the Regional Manager’s contention that the sales assistant was disrespectful or intimidating or insubordinate was not supported by the audio recording. Even the emails sent by the sales assistant to the Store Manager and the Regional Manager did not support the claim that the sales assistant was intimidating or insubordinate. She was adamant in expressing her complaints about her work hours being reduced. The FWC noted that the first sentence where the sales assistant thanked the Regional Manager for showing her “the error of her ways” was sarcastic but it was not appalling in tone nor was it disrespectful.
Secret audio recording of meeting with Human Resources Officer
The sales assistant also recorded the conversation during the meeting where was notified of the allegations against her. When the sales assistant reiterated her complaints about the reduction of her work hours, the Human Resources officer was recorded making incorrect claims about the sales assistant’s rights under the law.
Secret recordings breached the employer’s trust and confidence
When the sales assistant recorded the conversation with the Regional Manager, she engaged in inappropriate conduct that damaged the trust and confidence of the employer in the sales assistant. While the sales assistant recorded the meetings secretly because she was not sure what the meeting was about, she should have informed the Regional Manager and the Human Resources Officer that they were being recorded. The sales assistant may have only wanted to have evidence to defend herself against the accusations of her employer and the sales assistant did not record the conversation to damage her relationship with her employer, still, the secret recordings damaged the sales assistant’s relationship with her employer.
Dismissal was harsh
While the surreptitious recording of conversations with her manager and with the human resource officer was a valid reason for dismissing the sales assistant, the employer was not aware of this reason for dismissing the sales assistant until the trial. The employer did not give the employee any reasonable opportunity to respond to the reason for her dismissal. For this reason, the dismissal was unreasonable.
The FWC also found that the manner of dismissing the sales assistant was bungled and incompetent: while the Human Resources officer assured the sales assistant that her failure to attend the meeting on 1 March 2020 will only result in her suspension, the Human Resources officer went ahead and dismissed the sales assistant. This made the dismissal harsh as well.
None of the grounds relied upon by the employer in their dismissal letter was reasonable or fair, thus there was no valid ground for the dismissal. Lastly, the dismissal was harsh because of the economic impact the dismissal will have on the sales assistant especially since there is a pandemic and her chances of being employed has been reduced.
Angele Chandler v Bed Bath N’Table [2020] FWC 3706 (13 August 2020)
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