Lights off tea room interludes justifies summary dismissal
A recent industrial decision makes clear that employees who deliberately don’t work for extended periods and claim wages may be summarily dismissed. It also provides guidance about who can be dismissed when employees collectively engage in misconduct but to varying degrees of culpability.
In the decision of Shokry Milad; Medhat Botros v Melbourne Health T/A Royal Melbourne Hospital  FWC 1939, the Fair Work Commission (‘FWC’) determined two unfair dismissal applications from two cleaning employees of the Royal Melbourne Hospital (‘hospital’) who claimed they were unfairly dismissed for allegedly sitting in the team room for extended periods instead of performing their duties.
The matter arose on 16 July 2019 when the Perioperative Services Manager sent an email to the Support Services Manager advising him that she had seen a number of his staff members in the dark in the level 2 theatre tea room, not working for an hour or more. The relevant enterprise agreement only allowed a 30 minute meal break.
CCTV footage for the period from 9 to 15 July 2019 showed that 19 Environmental Services employees had been spending significant periods of time in the tea room, excluding breaks, when they should have been on duty. This was determined from a single camera showing employees entering and exiting the tea room.
All 19 employees were then suspended pending an investigation which led to 11 employees being dismissed and two employees, Mr Milad and Mr Botros, claiming unfair dismissal.
In relation to Mr Milad, CCTV footage of the tea room revealed 3 hours and 26 minutes on 9 July 2019, 3 hours on 11 July 2019 and 3 hours and 50 minutes on 12 July 2019. This footage showed that Mr Milad spent 44% of his time that week in the tea room not working.
In relation to Mr Botros, CCTV footage of the tea room revealed 1 hour and 41 minutes on 10 July 2019, two occasions totaling 25 minutes on 1 July 2019 and 51 minutes on 16 July 2019.
Melbourne Health gave evidence that it regarded this conduct as “time theft”. The FWC noted that Environmental Services employees are responsible for cleaning trauma theatres and the hospital had repeatedly failed cleaning audits in this area.
The FWC accepted the conduct had occurred and despite some minor errors with the allegations, determined there was a valid reason for dismissal and that their conduct constituted serious misconduct. In this case of Mr Milad, his misconduct was aggravated due to occasionally being allocated supervisory duties.
Mr Milad and Mr Botros both claimed their dismissal was unfair, amongst other things, due to differential treatment compared to other employees who were not dismissed. It was noted that out of the 19 employees, 11 were dismissed, one resigned and the remainder were issued warnings. The Human Resources Manager for Melbourne Health gave evidence that the primary factor determining the outcome for each employee was the amount of time spent in the tea room instead of working.
The FWC referred to the decision of Electricity Commission of New South Wales t/a Pacific Power v Nieass, Full Commission of Industrial Relations Commission of NSW (1995) 81 IR 46 relevantly stating “The response to misconduct will be a matter of discretion for the reason that the “time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide”.
The FWC also adopted the decision of Sexton v Pacific National (ACT) Pty Ltd, AIRC (2003) unreported, Print PR931440,  which is authority that these matters must be treated cautiously and there may be circumstances subjective to the employee that may cause an employer to be more lenient in a comparable case. A reason for leniency might be “extreme need or stress arising from the serious illness of a close dependent” and that “Many other examples could be constructed.”
The FWC found there was insufficient evidence to support their claims and was unable to find they were treated differently to other employees or that such different treatment would render their dismissals unfair.
The FWC concluded their dismissals were not unfair and dismissed their claims. This was despite Mr Milad being 62 years of age with 16 years service and Mr Botros being 55 years of age with 18 years service. The FWC was of the view their misconduct was significant and they had not shown any remorse or contrition.
Why is this case important?
This decision is important as it outlines that employees who deliberately don’t work for extensive periods but continue to claim wages may be summarily dismissed.
The decision is also important as it outlines that an employer is able to apply differential disciplinary outcomes to employees arising from the same circumstances based on the degree of culpability and the subjective circumstances of each employee.