Health care worker compensated after Fair Work ruled his dismissal for tagging colleagues in a “sexual” Facebook post was harsh

Businesses are being reminded to act swiftly on staff behavioural issues and establish clear expectations of acceptable actions in the workplace after the Fair Work Commission awarded compensation to a staff member at Bendigo Health Care Group who was fired for tagging two colleagues in a sexually explicit Facebook post.

In August 2016, Bendigo Health Care Group staff member Michael Renton tagged two colleagues on Facebook in a video post that showed “an obese woman in her underwear dropping her stomach on to the back of a man on all fours, also in his underwear”, according to a case report from the Fair Work Commission. In the video, the woman reportedly is heard saying: “how heavy is that” and “a little horsey”.

The Commission head one of the colleagues that was tagged in the video also said he found blobs of sorbolene cream on his desk, which Renton said he had left there as a practical joke. Renton “said that the sorbolene cream was not intended to convey that a person had masturbated on the desk, rather it was just a way of playing an annoying practical joke on [staff member] Mr Christie”, according to the Commission’s report of the evidence.

However, management called Renton to a meeting on August 9 to discuss the two incidents and was told in a letter at the time he was not to make contact with the staff members involved about the incident.

The Commission heard Renton did communicate with the staff members after this warning, and his employment was terminated on August 19. The Commission found that in the course of communications after the dismissal, Renton had made references to the Group’s HR manager when talking to one of the staff members that were “derogatory, crass and unedifying”.

In ruling on the unfair dismissal case, Commissioner Bissett found that Renton should have listened to the voice in his head that said staff members could have been offended by his actions, and that “he has displayed a lack of insight into the effect of his post on his colleagues”.

However, the commissioner also took into account the unblemished employment record of Renton, who had worked for Bendigo Health since 1999. She also found “on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct”.

Commissioner Bissett found the actions involved were serious and warranted a response from Bendigo Health, but because of the one-off nature of the incident, the termination of the employment was harsh.

It was decided, however, that it would be inappropriate to reinstate Renton.

After submissions from both the employer and the former staff member, on February 20 the Commission decided Bendigo Health should pay Renton $2,014.89 plus superannuation.

Commissioner Bissett took into account a number of adverse findings against Renton in making the decision, including that he displayed “an appalling lack of judgement” through his actions.

Acting swiftly is key 

While the commission found the staff member’s behaviour in this case warranted a response from his employer, the actions were considered in context of the employee’s overall performance, says director at Workplace Law Shane Koelmeyer.

“You’re looking at how long the employee had been there – he had been there since 1999 with no priors, an exemplary employee, a model employee since 1999, and he does this one thing,” Koelmeyer says.

“When you look at the overall body of his employment, then you take into account the personal circumstance and say, “is this something that’s a pattern of behaviour?”

Koelmeyer suggests there are three lessons from this case for businesses when it comes to managing employee behaviour.

This includes dealing with any misconduct in context.

“You want to look at the whole body of an employee’s work,” he says.

“Ask, ‘how does this fit into the course of their employment?'”

Secondly, it’s important to deal with any issues at the time that they happen, rather than raising them down the line.

“If you did nothing about a behaviour three months ago, then you can’t bring up something three months ago [when disciplining an employee],” Koelmeyer says.

Finally, make sure minimum standards of behaviour are established and provide warnings and documentation when someone skates close to the edge.

“It’s very hard to performance manage people if you don’t call them on it,” he explains.

“You get what you tolerate. Employers should set the standard of what’s expected.”

Once an issue has been raised, make sure you open up the conversation with the employee for a response, Koelmeyer advises.

“You always should offer them procedural fairness and give them the opportunity to respond.”

SmartCompany contacted Bendigo Health Care Group but did not receive a response prior to publication. SmartCompany is waiting for comment from Renton on the case.

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