How post dismissal behaviour can be used against you
The post dismissal behaviour of an employee can be relied upon by an employer as a valid reason for dismissal. While it doesn’t happen often, there have been many unfair dismissal cases that employees would have won if not for revelations about their conduct after they were dismissed.
In this article, we provide a clear explanation of what post dismissal behaviour is. We outline how it can be used by employers to defend against unfair dismissal claims. And to give you a practical understanding, we share a recent unfair dismissal case where an employee’s post dismissal behaviour featured as key evidence.
What is post dismissal behaviour?
The idea of post dismissal behaviour influencing an unfair dismissal case may seem confusing. But in an unfair dismissal context, post dismissal behaviour doesn’t relate to an employee’s conduct after they were dismissed. Rather, it is behaviour which an employee engaged in during their employment. But it was discovered by their employer after they were dismissed.
Post dismissal behaviour as defined by the Fair Work Commission
In the unfair dismissal case Clair Petersen v Kizuri Capital Pty Ltd, Maycorp Pty Ltd and Cricklewood Capital Pty Ltd , the Fair Work Commission outlined its stance on what constitutes post dismissal behaviour. And when it should be taken into account to determine if a dismissal was unfair or not.
“…whilst it is well established that in certain circumstances post-dismissal conduct by an employee can constitute a valid reason for dismissal, not all conduct relevant to a former employment relationship can be so categorized,”stated the Fair Work Commission.
Commonly, the conduct is such that would have fundamentally struck at the heart of the employment relationship such that the relationship could not have continued had it been known at the time of dismissal. This necessarily requires the conduct to have occurred during the course of employment, that is prior to dismissal.
Post dismissal behaviour unearths manager’s deceptive plan to steal client
A recent unfair dismissal case – Kieren Michael Chalk v Ventia Australia Pty Ltd  – illustrates how post-dismissal behaviour can be used by employers. The case involved Kieren Chalk, a strategic asset manager for Ventia, which provides facility management services to businesses.
On 1 July 2022, Mr Chalk sent an email to one of Ventia’s clients. It stated that the company had been subcontracting services for the client above Ventia’s ceiling rate threshold. Mr Chalk said that Ventia had overcharged the client “to the tune of $68K per month.” The email also included a copy of Ventia’s Services Agreement, containing the ceiling rates. This was confidential and not to be shared with those without permission to view it. He also detailed confidential proposed savings strategies for the client.
The employee is dismissed for sharing confidential information
Ventia’s management soon found out that Mr Chalk had shared confidential company information with the client. And he was stood down while a workplace investigation was conducted. During this time, Mr Chalk deleted the email he sent to the client from his sent items folder. During his unfair dismissal hearing, he denied ever doing this.
In his defence, Mr Chalk argued that he hadn’t erred in sending the confidential information. He claimed that his actions were in the service of data integrity. Therefore, he argued that sending the services agreement wasn’t a confidentially issue. And that if he hadn’t shared confidential information with the client, he would have breached the services agreement. He claimed that he was merely keeping the client informed.
However, Ventia didn’t see it that way. On 21 July, Mr Chalk was sacked from his position. He subsequently made an unfair dismissal claim with the Fair Work Commission.
Employer discovers damning letter in Mr Chalk’s draw
Two weeks after Mr Chalk had been sacked, Ventia happened upon a key piece of evidence that implicated him in far more serious misconduct. This evidence constituted the post-dismissal behaviour that would derail Mr Chalk’s unfair dismissal claim. While searching Mr Chalk’s desk drawer, a Ventia manager discovered a hand-written note. In it, Mr Chalk had laid out his plan to steal Ventia’s client.
Further post-dismissal behaviour is discovered by Ventia
Ventia discovered even more evidence that it used as post-dismissal behaviour justifying Mr Chalk’s dismissal. During a search of his emails weeks after Mr Chalk’s dismissal, a manager noticed that he had sent an email to his partner, Kate Toner. Ms Toner had previously worked for Ventia for less than three months, having left the company on acrimonious terms in January 2022. This email contained an unredacted copy of Ventia’s confidential services agreement, detailing the ceiling rates.
Ventia weren’t aware that the pair were romantically linked. But the company had previously inquired with Mr Chalk as to his relationship with Ms Toner. And after Mr Chalk’s dismissal, a manager discovered correspondence between him and Ms Toner that suggested they were in a relationship.
Fair Work Commission accepts post-dismissal behaviour as evidence
Mr Chalk’s damning note and email to Ms Toner were discovered after his dismissal. But Ventia was still permitted to cite it as post-dismissal behaviour to defend against Mr Chalk’s unfair dismissal claim. The Fair Work Commission said that while Ventia only discovered these critical pieces of evidence after Mr Chalk’s dismissal, it was “open to Ventia to rely on the full extent” of his misconduct as a valid reason for dismissal.
Provides unlikely excuses for post-dismissal behaviour
At his unfair dismissal hearing, Mr Chalk told the Fair Work Commission that the note was prepared during a discussion with Ms Toner. He claimed that Ms Toner had “dictated the content and he had simply written it down to humour her and calm her down so as to reduce a stressful situation at home.”
Ms Toner, however, told the Fair Work Commission that the note had been created to assist Mr Chalk in a performance meeting with Ventia management. Mr Chalk admitted that his previous statement to the Fair Work Commission regarding the creation of the note had varied. That is, from what he admitted during his unfair dismissal hearing. He blamed this variation on “memory failure.”
As for the email to Ms Toner, Mr Chalk claimed that he had sent it to her so she could extract an image from the services agreement. He claimed this could be best done on a Macintosh computer, which Ms Toner had.
Ventia argues Mr Chalk’s dismissal was valid
Ventia told the Fair Work Commission that there was no need for Mr Chalk to inform the client about the ceiling rate issue. That’s because there wasn’t an issue. The company said that had Mr Chalk simply consulted management, he “could have been advised there was no ceiling rate issue as there were ‘grand fathering’ arrangements in place, with the client’s knowledge.”
Ventia argued that Mr Chalk had taken “premature action” in informing the client. It said that this action embarrassed the company and transgressed his contractual obligations.
Ventia told the Fair Work Commission that it was concerned that Mr Chalk had advocated for the company to hire Ms Toner. And that he hadn’t disclosed their relationship. The company argued that Mr Chalk had “a lack of truthfulness” regarding his relationship with Ms Toner. And that sending the email to her further transgressed his confidentiality obligations, resulting in a loss of confidence and trust.
Fair Work Commission considers Mr Chalk’s post dismissal behaviour
The FWC considered the first key piece of evidence of Mr Chalk’s post dismissal behaviour. That is, the note detailing his plans to steal Ventia’s client. The Fair Work Commission said that Mr Chalk’s account of the note’s creation was “incompatible” with that of Ms Toner’s. It said that his varying explanations of the note “adversely impact on his credibility.”
The FWC stated that the note: “…appears to contemplate a strategy to persuade the client that [Mr Chalk] is the only person who can perform the role, that there are no other options, and the performance of [Mr Chalk’s] role is being obstructed by internal politics.”
Email to client provides valid reason for dismissal
Next, the Fair Work Commission considered the email Mr Chalk had sent to the client, which contained the confidential services agreement. And also, informed them about breaches of the ceiling rates.
The Fair Work Commission deemed the email was “both a breach of [Mr Chalk’s] confidentiality obligation and poor exercise of discretion.” This is because Mr Chalk had “failed to consult with his superiors about a matter which he himself recognised required further investigation.” The Fair Work Commission therefore found that the email provided a valid reason for Ventia to dismiss Mr Chalk.
Post dismissal behaviour provides another valid reason for dismissal
Next, the Fair Work Commission considered the second key piece of evidence of Mr Chalk’s post-dismissal behaviour. That is, the email containing the services agreement that Mr Chalk had sent to Ms Toner. The Fair Work Commission found that this was a “breach of confidentiality.” It accepted that as a result Ventia “lost trust and confidence” in Mr Chalk’s “ability to perform his role.” And that this therefore provided another valid reason for his dismissal.
With regard to Mr Chalk’s failure to disclose his relationship with Ms Toner, the Fair Work Commission found that it wasn’t “sufficient to ground a valid reason for dismissal.” In summing up the case, the Fair Work Commission said that Mr Chalk’s misconduct “was not inadvertent.” And it also remarked that he hadn’t shown any remorse for his actions. It deemed them as actions that “clearly resulted” in embarrassment for Ventia. And were a “significant breach of Mr Chalk’s employment obligations.”
The Fair Work Commission therefore dismissed Mr Chalk’s unfair dismissal claim.
Conclusion to: How post dismissal behaviour can be used against you
While Mr Chalk’s post dismissal behaviour was legitimately used by Ventia, sometimes employers can misuse such evidence. They may also use false or misleading reasons to dismiss an employee. Or deny them a fair and reasonable workplace investigation.
Dealing with an unfair dismissal can be a complicated and challenging process, but A Whole New Approach offers assistance to employees who have experienced this situation. With a remarkable success rate in handling over 16,000 cases, our skilled workplace mediators are dedicated to providing exceptional support and ensuring a fair outcome for employees who have been unfairly dismissed.
Our focus is on protecting your employment rights, and we are committed to helping you navigate through this difficult time. You don’t have to worry about costs, as we offer a risk-free guarantee – you only pay if we win your case. Take advantage of our free initial consultation to learn about your rights and explore available options. You don’t have to face the aftermath of an unfair dismissal on your own.
Contact us at 1800 333 666 for a confidential discussion and let us help you fight for justice.
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