Published 6 September 2016
The Fair Work Commission found a man was not unfairly dismissed because he breached his employment contract and was deliberately untruthful during the investigation, resulting in a loss of trust between him and the employer.
Mr Jacob was dismissed from his employment with West Australian Newspapers Limited (“the respondent”), after the respondent claimed Mr Jacob had breached his contractual obligations by working another job, repeatedly and deliberately lied to them regarding his occupation with Uber, and had hindered their investigation by not providing requested documentation. Mr Jacob claimed the dismissal was unfair and sought an unfair dismissal remedy.
Mr Jacob’s contract of employment required him to seek permission from his employer to engage in work other than that provided by the respondent. The related clause was common in employment contracts of a similar nature.
Mr Jacob was also required to follow the respondent’s Employee Code of Ethics, which held a similar provision. Additionally, the respondent had a Fitness for Work Procedure, detailing the requirement of employees while at work to not be negatively affected for any reason including fatigue. The Employee Code of Ethics and Fitness for Work Procedure was emailed to all employees, including Mr Jacob. Although Mr Jacob may not have read them, he was given access to them and was required to adhere to them.
The printing manager approached Mr Jacob in May 2014 regarding an incident while he was acting as Press Foreman and his unacceptable error rate. After no noticeable improvement over the following months, in October 2014 Mr Jacob was placed on a Performance Improvement Plan.
The respondent became aware that Mr Jacob may have engaged in additional work driving for Uber.
They conducted a meeting with Mr Jacob on 9 June 2015 and sent a follow up letter on 10 June 2015 regarding his obligation to ask for approval for any secondary work. The respondent highlighted that because Mr Jacob worked night shifts, this was a health and safety concern as the additional work may cause fatigue.
During this meeting, Mr Jacob denied being a registered Uber driver and submitted he could not remember why he had taken sick leave on 9 – 10 and 12 – 13 April 2015. He was asked to produce his Uber records, however Mr Jacob claimed they were related to his wife’s company, were confidential and subsequently he could not produce them.
He was given an opportunity to normalise his employment with Uber before a later meeting on 16 June 2015. He was encouraged to bring a support person.
On 16 June 2015, a letter was sent to the respondent from Mr Jacob’s lawyer, restating Mr Jacob’s position that he did not work for Uber and only covered a shift his wife, who worked for Uber, could not do. It was repeated that Mr Jacob could not supply the requested documents.
On a meeting of 23 June 2015, Mr Jacob continued to deny he worked for Uber. He used aggressive and inappropriate language. A receipt was produced by another employee of the respondent that showed Mr Jacob had been his Uber driver on 11 April 2015, the Saturday in-between the days he had taken sick leave. He was asked to produce his Uber records for periods he had taken personal leave, but claimed he was unable to do so as his wife had control of them and they had separated. Mr Jacob was asked to access these records and was informed the respondent was considering terminating his employment.
A letter was sent to Mr Jacob the following day, inviting him to respond to the show cause letter and a meeting was scheduled for 26 June 2015 to discuss a final outcome.
Mr Jacob’s response maintained that he did not work for Uber, however the response letter conceded that he did work for his wife, who had an Uber franchise. The letter claimed that Mr Jacob innocently assumed the work he performed for his wife constituted employment and his failure to treat it as additional work should not be seen as a deliberate attempt to mislead the respondent. The explanation offered ‘directly contradict[ed] what he told his employer’ in earlier meetings.
At the meeting on 26 June 2015, Mr Jacob failed to produce the requested documents. After the meetings adjournment, the printing manager said he no longer trusted Mr Jacob. Taking into account his recent poor performance, his continued placement on a Performance Improvement Plan and his dishonesty and failure to cooperate resulted in Mr Jacob’s employment being terminated.
The Fair Work Commission (“the Commission”) ruled there was a valid reason for the dismissal of Mr Jacob as he had undertaken additional work contrary to his employment contract, he deliberately lied to his employer and he failed to produce relevant records that were reasonably requested.
The Commission noted that Mr Jacob was notified of the reasons considered by the respondent in dismissing him, and he was given an opportunity to respond. Further, the respondent did not deny Mr Jacob the right to have a support person present at any of the meetings and the respondent ‘was plainly willing’ to negotiate with Mr Jacob in an effort to allow him to continue working as an Uber driver.
Senior management of the respondent did not trust Mr Jacob to ‘do the right thing’ because he was dishonest throughout the investigation process.
The Commission found Mr Jacob was not unfairly dismissed.