Gossip dismissal case offers lessons for employers

A legal expert says employers should review their workplace policies after a childcare worker was awarded nearly $10,000 for unfair dismissal after allegedly gossiping about several colleagues.

Childcare worker Tara Davies was sacked last June from Melbourne’s Hippity Hop Childcare, after her employer claimed she had been “back-biting” by describing one of her colleagues as lazy and another as an incompetent carer.

In a case put before Fair Work Australia, Davies was found to have been unfairly dismissed for breaching the centre’s strict “no back-biting policy”.

The policy states: “Back-biting is not tolerated at Hippity Hop Childcare… Any staff member caught back-biting may result in immediate dismissal.”

Fair Work Australia commissioner John Ryan said while the childcare centre was defined as a small business, which makes it easier to dismiss staff, its policy on back-biting was an “extremely blunt instrument”.

Ryan said the policy did not clearly define what back-biting meant, awarding Davies $9,480 in compensation.

According to Ryan, the policy made no distinction between malicious and untrue comments, and comments made behind a person’s back that were true and would not damage their reputation.

Davies admitted to making comments about her co-workers but said they were true. The tribunal ruled Davies’ comments were not a valid reason for dismissal.

Andrew Douglas, principal of Macpherson & Kelly Lawyers, says although the childcare centre’s workplace policy warned of instant dismissal for any back-biting, it failed to define the term.

“Had the policy defined and differentiated minor gossip from deliberate and malicious gossiping, the policy could have been effective,” Douglas says.

“In any event, the gossiping itself was not worthy of instant dismissal but the decision… reaffirms the rules around the development, implementation and enforceability of policies and procedures.”

Douglas says Davies’ employer not only failed to define back-biting, it was a one-size-fits-all policy, permitting no graduated response to misconduct and therefore “patently unfair”.

“It really is simple to change a business culture to a ‘good behaviour model’ if the policies and procedures are appropriately drafted, trained upon and enforced,” he says.

Douglas says employers must ensure the following:

1. Policies and procedures must be capable of being reasonable and lawful directions.

2. To be reasonable and lawful, the policies and procedures must:

2.1  not contain unlawful content;

2.2  be clear with essential elements defined;

2.3  have their purpose made clear and be reasonable; and

2.4  be understood by the employees.

3. The implications of breach must be understood.

4. All workplace behaviour policies should be linked to a code of conduct.

5. Employees must be inducted and regularly trained in the policies and procedures.