Worker Sacked for Deleting Work Phone Data Wins Job Back
A community services worker dismissed for deleting data from a work mobile phone in breach of her employer’s policy has won reinstatement after the Fair Work Commission (FWC) found the employer’s policy manual was too complex and failed to properly alert employees to their responsibilities.
What happened
The worker started work for Western Sydney Migrant Resource Centre Ltd in 2016. The organisation provides services to the Western Sydney migrant community such as settlement services, emergency relief, and case management. It also delivers a Tier 3 Humanitarian Support Program providing specialised and intensive services to support refugees classified as having high or complex needs, under a contract with the Department of Social Services. At the time of the dismissal, the worker held the role of Specialist Intervention Services Manager (Acting).
The FWC heard that, as part of its Tier 3 program, the organisation is required to have a specialised caseworker available to Tier 3 clients between 5pm and 9pm in case of emergencies. The worker was provided with a second mobile phone to receive calls after 5pm (the on-call phone). The worker told the FWC she received calls after 5pm from Tier 3 clients but clients just called her normal work mobile rather than the on-call phone. During the Christmas period of 2021, the worker took leave and a colleague was given responsibility for the on-call phone. Before giving the colleague the on-call phone, the worker deleted its contents. It was this act that led to the worker’s dismissal with the employer relying on the worker’s breaches of its policy manual to support the sacking.
In the FWC
It was not in dispute that the worker had deleted all of the information and data on the on-call phone prior to handing it over to her colleague. Deputy President Easton of the FWC found the conduct of the worker in this regard represented a valid reason for dismissal. The Deputy President said:
The potential damage this conduct could cause is reasonably obvious: the employer is deprived of the opportunity to inspect the device, it may compromise [the employer’s] record keeping systems and potentially its contractual obligations to retain records.
However, the Deputy President went on to find that the dismissal was unfair on the basis that, while the worker breached the “literal terms” of the employer’s policy manual by deleting the phone data, the terms of the policy are “long, complex, legalistic” and did not “fairly and clearly” put the worker on notice of its requirements. The Deputy President said there was little evidence of the employer ensuring its employees read and actually understood the policy manual. The Deputy President also found the worker’s explanation for why she said there were no Tier 3 client records on the phone was “rational and plausible”. Further, the consequences of the worker’s conduct were not serious in the sense there was a low risk the phone contained Tier 3 client records.
On the employer’s policy manual, the FWC considered clause 12, which is approximately 2500 words long and headed, “Appropriate Use of Information Technology”. The Deputy President cited some of the clause before observing:
The terminology in clause 12 is legalistic, complex and more commonly found in a commercial or government contract than in a document used by workers in a migrant assistance agency. Clause 12 might make sense to copyright lawyers and some IT specialists, but probably no one else.
Deputy President Easton continued by saying that if a single breach of the policy was regarded by the employer as serious and wilful misconduct, the requirements of the policy should have been made “obvious to staff through regular and clear messaging.”
The FWC ordered the worker to be reinstated to her former position within 21 days.
Al Bankani v Western Sydney Migrant Resource Centre Ltd [2023] FWC 557 (7 March 2023)