In a recent unfair dismissal decision, the Fair Work Commission (‘FWC’) confirmed that a crane company had a valid reason to dismiss a mobile crane operator (‘employee’), who attended an illegal protest in contravention of a Victorian Government public health stay-at-home order (‘PHO’).

Significantly, the FWC rejected the employee’s claim that although he had attended a protest in breach of the PHO, that this “was a matter between him and the Victorian authorities and did not have any bearing on his employment with the company”.  Deputy President Colman found that the employee’s conduct “was deliberate, in the sense that he chose to break the stay-at-home orders and by doing so put his employer’s reputation at risk” and that the employee “failed to have regard to his duty of fidelity to his employer and act in its best interest”.

Background to Decision

At the time of the termination, the construction industry in Victoria was subject to special arrangements that allowed the industry to stay open whilst most of Victoria’s economy had shut down.  On the day of the protest, the employee attended his employer’s premises, picked up a crane and travelled to the Metro Tunnel construction site where his employer was engaged as a contractor.  Upon arrival at the site the employee was advised by a CFMMEU delegate (‘delegate’) that the site was closed due to a state government directive that all tea rooms on construction sites were to be closed.  The delegate also informed the employee that the CFMMEU was in discussions about the possibility of working six-hour days without a break.

The employee alleged that he then returned to the employer’s premises and, before returning home, he had a discussion with the company’s managing director who “actively encouraged him to protest about the government restrictions on tea rooms and to ‘fight for his rights’.  The employee alleged “that the [managing director] asked him why he was not out protesting”.

The employee claimed that later that afternoon he attended the protest, staying for “around one hour”.  The employee alleged that he left the protest when it started to turn violent, and when he realised the protest had been violent earlier in the day.  He alleged that “some of the people who had been violent worked for the company”.

The next day, the employee received a call from the company’s managing director, informing him that his employment with the company was terminated due to serious misconduct.  The employee then attended the workplace and spoke to the managing director in person, who again confirmed the termination of his employment.

Unfair Dismissal Claim

The employee subsequently filed an unfair dismissal claim alleging that his employer did not have a valid reason to terminate his employment because:

• he did not disobey a workplace direction (to go home), because a direction was never given;
• he “had done nothing wrong, much less committed serious misconduct”;
• he only attended the protest because he wanted to find out what the CFMMEU was doing about the “tearoom situation” and to “support his fellow construction workers”;
• the protest was “no different from many other unauthorised industrial protests that have occurred over the years”;
• he had not engaged in violence;
• he attended the protest in his “private capacity, outside of working hours”;
• he was not dressed in clothing identifying the company; and
• his employer dismissed him because of “pressure” exerted on it by the CFMMEU.

The employee also claimed that his dismissal was procedurally unfair as he:

• was not given an opportunity to respond to the allegation (including that he had not engaged in violence at the protest);
• was not properly notified of the reasons for his dismissal; and
• was not provided with an opportunity to have a support person present during discussions relating to his dismissal.

The employer responded to the claim by explaining that the business operated under two union enterprise agreements and that the company’s relationship with unions, particularly the CFMMEU “was very important”. 

The employer claimed that it had not been “pressured” by the CFMMEU to dismiss the employee.  Rather, that the employee’s role within the company was one that required “trust” due to the “level of autonomy of his work” and that the employee’s attendance at the protest “destroyed” that trust.

The company’s managing director “strongly denied” the employee’s claim that he had encouraged the employee to attend the protest.  Instead, the managing director (supported by witness evidence) described the “conversation” with the employee at the work premises as “more of a ‘rant’ from [the employee] about the union, COVID, and the tea-shed issue, rather than a discussion, and that nothing was said about the protest or the possibility of [the employee] going to the protest”.

While the company acknowledged that the employee was terminated with “little procedure”, the employer claimed that the employee’s dismissal was valid because:

• the employee’s attendance at the protest made it “untenable for [the employee] to remain employed with the company”;
• the employee had attended an “illegal protest which he had no right to be at, given the COVID restrictions that were in place, under which there were only five reasons to leave the home”;
• the employee had attended the protest during paid work time;
• the employee was “identifiable because many people in the industry knew him”;
• the employee attended the protest for more than an hour; and
• the employee’s attendance at the protest caused the company to sustain “reputational damage”.

The Findings

The FWC determined that the incident was a “serious matter”, however the employee’s conduct did not meet the threshold for serious misconduct.  Deputy President Colman considered that the employee “did not think through the consequences of his actions”, and that it was not a case where the employee “directly defied a clear company policy prohibiting certain conduct”.  Rather, the FWC considered that the employee failed to have regard to the duties and obligations owed to his employer.

In considering the proportionality of the dismissal, the Deputy President concluded that there was a “valid reason” for the employee’s dismissal, but the employee should have been “dismissed on notice”.

In reaching its finding, Deputy President Colman rejected the employee’s claims that:

• the company’s managing director “encouraged him to attend the protest and told him to fight for his rights”;
• he had a right to attend the protest;
• his dismissal was a result of “pressure” exerted on the company by the CFMMEU; and
• he merely attended the protest to “find out what was going on”.

The Deputy President determined that:

• the employer’s instruction that the employee “could” go home was not a workplace direction;
• the employee understood that the PHO prohibited him from leaving his home, unless a permitted exception applied;
• the employee was aware that his attendance at the protest was not one of the five permitted exceptions;
• once the employer advised the employee that he was not required for work, the employee was required to abide by the PHO;
• the employee’s attendance at the protest “compromised the reputations of the company” in the “eyes” of the industry, construction industry companies, unions and the Victorian Government (being a client of the company);
• the employee’s attendance at the protest may have suggested to an observer that the company “endorsed or acquiesced” the employee’s attendance at the protest;
• the employee attended the protest for “well over an hour”; and
• it would have been obvious that the CFMMEU would take a “very dim view of employees who had attended the protest outside their office”.

Importantly, Deputy President Colman considered that the employee’s attendance at the protest had “several connections to his work” because the:

• protest concerned “tearooms and vaccination requirements” for construction workers (and industry);
• employee attended the protest during work time when he was being paid and was required to be available for work;
• protest occurred during working hours and at a time when the construction industry had remained open (and when most other industries were closed); and
• employee was identifiable as an employee of the company because based on the employee’s own evidence “he had been in the industry for twenty years, he drives a crane, and a lot of people know him”.

The Remedy

Deputy President Colman considered that reinstatement was “inappropriate” and awarded the employee compensation of 4 weeks’ pay (less taxation), being the equivalent payment, the employee would have received had the employee been terminated on notice.

Key Take Aways

Whilst this case is one that clearly turned on its own facts, Deputy President Colman’s decision clearly highlighted that the Fair Work Commission does and will take matters involving breaches of public health orders / directions seriously, and that breaches of such instruments by employees can form a valid reason for dismissal.  We expect that this decision is another indicator that the same approach will be reflected in future unfair dismissal decisions involving employees who refuse to comply with public health directions imposing vaccination (or other COVID safety) requirements (and where the employee has not established a valid exemption from those requirements).

The case also highlights the importance of:

• understanding what conduct does and does not meet the threshold for serious misconduct; and
• ensuring that a proper process is followed when terminating an employee – simply having a valid reason for the dismissal is not sufficient to defend an unfair dismissal claim.

Employers who are considering their rights and obligations in terminating an employee (including due to breaches of public health directions), should strongly consider contacting Aitken Legal and well before termination.

Case: Omar Chebbo v Major Crane Logistics Pty Ltd of the Fair Work Commission [2021] FWC 6693