Excerpts from this article first published in ‘Human Resources’ Magazine,
Issue 101, 4 April 2006
Two recent decisions highlight the importance of supervisors and managers
leading by example when demonstrating appropriate standards of behaviour
in the workplace.
Breach of Employer’s Trust
In Cunningham v Australian Bureau of Statistics (2005) AIRC PR963720, the
Full Bench of the Federal Commission considered the seriousness of a manager
cheating in the office footy tipping competition. Mr Cunningham was employed
as an Assistant Director. He was responsible for the development and maintenance
of the office footy tipping database.
Mr Cunningham was discovered logging into the database on weekends after
some games had been played to change his tips. The rules of the competition
were that tips for each round had to be finalised before the Friday night game.
Mr Cunningham would enter his tips on the Friday and then change them on
the weekend to improve his results. Mr Cunningham stood to gain financially
from the changes. Unfortunately for him, his changes were logged into the
backup of the database.
A formal investigation was instituted for possible breaches of the Australian
Public Service Code of Conduct. Mr Cunningham denied most of the allegations.
He admitted that on one occasion he had changed the tips because he had
forgotten to change them before the Friday night game. He said that he had
intended to make the changes so it wasn’t unfair on the other participants in
the competition. He said that he did not intend to cheat. This explanation was
not accepted and Mr Cunningham’s employment was terminated.
Commissioner Eames at first instance found that there was no valid reason for
the termination of employment. Commissioner Eames concluded that changing
footy tips is “not work related in terms of the Code of Conduct”.
The Full Bench rejected Commissioner Eames’ conclusion and observed that
“trust was a critical element in the employment relationship, particularly at
the management level”. As Mr Cunningham was at a senior level and had
system administrator privileges, his position carried with it a high degree of
trust. The Full Bench concluded that Mr Cunningham’s actions meant that the
requisite level of trust no longer existed and there was a valid reason for the
termination.
The Full Bench observed that Mr Cunningham’s 14 year unblemished record
may have been significant if he had made an early and frank disclosure of all
of the alterations he had made. The fact that he abused his position of authority
for personal gain was serious enough to justify his dismissal.
Breach of Sexual Harassment Laws
In Mangiafico v Department of Human Services (2005) AIRC PR 963416,
the Commission confirmed that supervisors are expected to model appropriate
standards in the workplace and must not engage in sexual harassment of their
colleagues.
The Department of Human Services discovered that Mr Mangiafico had been
engaging in inappropriate conduct in the workplace. In the course of investigating
the complaints, other staff members complained about frequent inappropriate
physical contact. The allegations included offensive comments, inappropriate
hugging and feeling of female employees and inappropriate touching of male
employees.
Mr Mangiafico denied the allegations and said that hugging and putting his arm
around colleagues was not intended to be in any sexual sense. He said the he
was just a “touchy-feely guy”.The Commission found that his conduct was “not
befitting an employee with his level of responsibility” and that he “could reasonably
have been expected to have been of sufficient maturity to appreciate that physical
contract in the workplace is, in all but exceptional circumstances, most likely to be inappropriate”.
As a supervisor, his duties included modeling appropriate positive behaviours in
the workplace. The Commission found that his dismissal was justified in the
circumstances.
Supervisors and managers that breach workplace standards of behaviour may
be dismissed because they have failed to set an example to their colleagues. It is
clear that a higher standard of behaviour is expected of supervisors and managers.
However, in dismissing an employee for these reasons, employers should ensure
that principles of substantive and procedural fairness are adhered to.
Craig Taylor Senior Associate
Australian Business Lawyers
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