‘Harsh dismissal’ payout to public servant – but sacking stands
A 54-year-old public servant has been awarded more than $17,000 compensation for his “harsh dismissal”, despite “legitimate and long-standing” concerns about his performance.
His sacking, however, still stands.
The payout comes despite an Industrial Relations Commission finding that the employer’s concerns about his performance were “legitimate and longstanding”.
In a decision published yesterday, the Industrial Relations Commission criticised multiple failures of the Department of Health to follow proper procedures in the management and dismissal of its employee.
Graham Lucas, a rehabilitation consultant in the Department of Health, was sacked from his $73,000 a year job on 11 September 2012, having worked in the South Australian public service since 1983.
The department’s concerns with Lucas’s performance dated back to 2007 and included misuse of Government resources to send emails with photos of penises, breasts and “risque” images.
Lucas appealed his sacking under the Fair Work Act.
Court files show Lucas was sacked for misconduct relating to absences from work, file management, not turning up to meetings with a number of clients; and using work resources and equipment to distribute inappropriate emails.
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“The emails variously contain photographs of model penises of varying sizes, allegedly taken from ‘National Penis Day’* celebrations in Japan; what might generally be deemed ‘risqué’ photos of women, one showing breasts and partial nipples exposed; a number of ‘jokes’, a small proportion of which may be deemed crude; and one ‘Irish joke’ about a Methodist pastor, a Rabbi and a Catholic Priest entering a brothel,” the IR Commission’s decision summary shows.
“The applicant does not dispute that he sent the emails, but stated that they were not created, just forwarded by him and that they were sent to known recipients who would not be offended by them.
“He stated that receiving and forwarding the emails allowed him to relax. He stated that he had no intention to offend anyone or to damage the reputation of the employer.”
The Health Department provided evidence from Lucas’s superiors to demonstrate his poor performance as a rehabilitation consultant.
Most of the material wasn’t disputed.
In his defence, Lucas cited constant changes to his role, lack of administrative support, a complex client base and lack of clarity on his role.
The commission found that while most of the department’s concerns were established, the manner in which it went about dismissing Lucas had failed on a number of counts.
Deputy President Karen Bartel said she was “satisfied that the applicant was not performing at an appropriate standard in relation to case management, including client and file management and compliance with administrative procedures. However, I cannot ignore the myriad of procedural defects on the basis that they would have been of no material effect”.
“The employer allowed the applicant’s perceived failings to continue unchecked throughout 2011 and the early part of 2012,” Bartel said.
“The employer did not warn, counsel or otherwise place the applicant on notice regarding his performance and/or failure to comply with directions.
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“The requirement that the applicant respond to the material presented to him on 4 June 2012 on the day, was inherently unfair.
“The opportunity for the applicant to discuss the matters with his representative did not alleviate the prejudice to him.
“Not only was the material voluminous and broad ranging in scope and time frame, it was confusing in its presentation, with some material bearing no apparent connection to the allegations against him as outlined in the letter of 28 May 2012.
“The DHA representatives did not explain which parts of the material were relied upon and how it was relevant to the allegations against him.
“Further, the ‘extension’ provided by the employer was inadequate and this should have been obvious to those involved in conducting and considering the investigation.
“In this matter the procedural defects are significant. I conclude that the dismissal of the applicant was harsh.”
While Lucas had a victory on the harshness of his dismissal, DP Bartel wasn’t moved to give him his job back.
“I have serious concerns about the appropriateness of re-employing the applicant into his former position given my conclusion that the employer held legitimate and long-standing concerns about the applicant’s performance and that he was not coping with the requirements of his position or responding appropriately to administrative directions over many months preceding the investigation.
“In these circumstances I do not consider that reemployment in the applicant’s former position or in an alternative position would be a practical or appropriate outcome,” she said.
“I consider that payment of an amount of compensation equal to twelve weeks wages is appropriate in the circumstances and an order to this effect is attached to this decision.
“This amount is in addition to the applicant’s statutory entitlements on termination of employment, which had not been paid as at the date of the hearing.”
*Japan’s National Penis Day Festival is described on various travel websites as “Honen Matsuri, celebrated every March 15 in Komaki, a town about 45 minutes north of Nagoya, Japan. This is the time of year where folks haul out a large wooden penis to give three cheers to fertility and renewal.”
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