Fair Work Australia overturns decision to sack worker for gossiping

Fair Work Australia has declared a childcare worker who was sacked by her employer for “back-biting” was unfairly dismissed, despite the fact the company had a policy in place saying that gossiping against other staff would not be tolerated.

Tara Davies launched action against Victorian childcare centre operator Hippity Hop Childcare after being sacked in June 2010 for breaching her employer’s “no back-biting” policy, which was intended to prevent staff gossiping about each other maliciously.

“Back biting is NOT TOLERATED at Hippity Hop Childcare; it is unacceptable and can lead to the breakdown of unity between staff within the centre, making it an unpleasant place to work,” the policy read.

“Any staff member caught back-biting may result in immediate dismissal.”

Davis was sacked after her employer claimed she had described one colleague as lazy and another as an incompetent carer.

The principal of the centre, Michelle Smith, held a discussion with Davis and said the centre intended to apply its policy. Davis walked out of the meeting, leading to some questions as to whether she had been sacked or had abandoned her job.

Further complicating the matter was the fact the Davis had complained to a director of the centre about the conduct of a staff member who was also the director’s sister, and that these complaints were not acted upon.

But Fair Work Australia commissioner John Ryan said Davis was sacked, after deciding the centres managers had told other staff Davis has been dismissed.

Ryan also ruled that while the centre was defined as a small business, and therefore enjoyed the limited protection of the Unfair Dismissal Code which allows summary dismissal for serious misconduct, back-biting could not be placed in that category.

“The negative comments made by the Applicant do not of themselves constitute a valid reason for dismissal,” Ryan said.

“The… policy on ‘back-biting’ is an extremely blunt instrument. Any instance of ‘back-biting’ committed by an employee would be a breach of the policy and make the employee liable to instant dismissal.”

“The policy makes no distinction between malicious and untrue comments made behind a person’s back with the clear intention of destroying the person’s reputation and comments made behind a person’s back which are true and which would not result in serious damage to the employees reputation.”

“The very bluntness of the policy means that mere breach of the policy cannot constitute a valid reason for dismissal. The nature and intent and effect of the ‘back-biting’ need to be considered.”

Davis was awarded $9,480 in compensation.

Writing in SmartCompany today, IR lawyer Andrew Douglas says a central problem with the childcare centre’s policy was that it was one-size-fits-all, and did not offer multiple levels of disciplinary action – instead, instant dismissal was the only response to a breach.