Should they be sacked?
Two 7News Anchors Caught Cussing out Novak Djokovic, this recent controversy got the attention of the media world wide. This deserves commentary as to whether someone should be sacked. In turn possibly what would the Fair work Commission makes of it all.
Summary of events, to Should they be sacked?
On 11 January 2021, a leaked video surfaced on social media depicting two of 7News TV presenters, Ms Rebecca Maddern and Mr Mike Amour. It contained swearing and lashing out over the Novak Djokovic Visa saga. In what appears to be a private conversation off air, Ms Rebecca Maddern states, “Whatever way you look at it, Novak Djokovic is a lying, sneaky asshole”. Mr Amour responds stating, “That’s it, I mean he’s an asshole. He got a bullshit f...king excuse and then fell over his own f…king lies. It’s just what happens, right, that’s what happened”.
The video went viral all over the world and purported 7News to make several public statements. On 12 January 2021, Mr Craig McPherson, Seven’s Director of News and Public Affairs, said the person responsible for leaking the ‘private conversation‘ would be dealt with. Mr McPherson stated, ‘The illegal recording was of a private conversation between two colleagues. It was an underhanded, cowardly act in breach of the Victorian Listening Devices legislation the perpetrator of which will be accordingly dealt with when found‘.
In addition, Seven’s Managing Director, Mr Lewis Martin, followed up on 3AW radio stating that Ms Maddern had apologised and the network was thoroughly investigating who was behind the leak. Mr Martin told 3AW radio, “We are going to have an outcome. What has happened here is illegal”.
7News is attempting to save face
Whilst it appears 7News is attempting to save face and flip the blame onto the person who leaked the video recording. They made no disclosure as to whether any disciplinary action would be taken against the two news anchors involved. Whilst Mr Martin acknowledged Ms Maddern had allegedly apologised. This apology was not made to the public and was only mentioned as having occurred by 7News in their public statement.
This incident raises important issues about potential disciplinary action that could arise against employees who’s conduct. That has the potential to cause reputational damage to their employer and whether this constitutes a valid reason for dismissal.
In the Fair work Commission, conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business, has been held to be serious misconduct and a valid reason for dismissal. This conduct can include out of hours conduct that has a relevant connection to the employment relationship.
Fair work Commission unfair dismissal cases
In Rose v Telstra, the Australian Industrial Relations Commission looked at relevant decisions on out-of-hours conduct and provided the following summary:
- ‘The conduct must be such that, viewed objectively. It is likely to cause serious damage to the relationship between the employee and employer; or
- The conduct damages the employer’s interests; or
- The conduct is incompatible with the employee’s duty as an employee.'
In cases involving out of hours conduct, it is not sufficient for the employer to simply assert that the conduct will in some way affect the employer’s reputation. Or compromise the employee’s capacity to perform his or her duties. There needs to be evidentiary material upon which a firm finding may be made.
Sending a email can get you the sack
In Hayes v Murdoch University, Mr Stephen Hayes was terminated for serious misconduct after he sent the following email to Mr David Kalisch from the Australian Bureau of Statistics (ABS):
“Mr Kalisch, Who the “f” do you think you are changing the scope of the census by collecting my family members’ personal data electronically to be stored indefinitely. My family’s personal information is none of your fucking business! I worked in IT Mr Kalisch and know (sic) you won’t (actually can’t) keep that data safe.
The Australian Government has been illegally spying on my family’s private emails, private phone conversations, actual physical movements (and god knows what else) for years. Treasonously sharing that data with other countries without our knowledge – we wouldn’t even know about this outrage now if it weren’t for whistle blowers like Edward Snowden and Julian Assange who are now being persecuted by these same governments.
The world has changed Mr Kalisch and the Australian people no longer trust the Australian Government. Especially as you are not asking us to complete the census but instead are threatening huge fines for those who do not ‘comply’. Tell you what why don’t you just use the data you stole from me for all these years and put that in your f…king Census!”.
Employees cannot use the employers email with immunity
The email was sent from the Murdoch University email address with the University’s logo and Mr Hayes’ signature. The ABS then emailed Murdoch University and complained about Mr Hayes behaviour stating, “Irrespective of their personal opinions. I feel sure that you would expect a higher standard of conduct from staff engaging under the signature block and logo of your esteemed institution”. The email was then tweeted online from an account with 1,200 followers and the University was receiving attention on social media.
Mr Hayes was summarily dismissed for serious misconduct and he lodged an unfair dismissal application.
Deputy President Bull of the Fair Work Commission had no difficulty arriving at the conclusion that the sending of the email by Mr Hayes provided Murdoch University with a valid reason for dismissal. DP Bull held that the misconduct constituted the use of language that was vulgar and offensive. That was contained in an email identifying the University and Mr Hayes’ role at the University and this conduct was in breach of the University’s policies.
While the language used by Mr Hayes may be common vernacular in some circles, when reduced to writing and addressed to a specific recipient not personally known to Mr Hayes. Deputy President Bull found that such language has an element of intentional abuse and cannot be regarded under any circumstances as acceptable language. Further, the fact that the email was tweeted online and the University was receiving social media attention. Regardless of the number of followers, gave rise to the conclusion that the reputation of the University was prejudiced. The employee’s unfair dismissal application was dismissed.
Lessons for employees and employers, for should they be sacked?
Employers should manage conduct-related dismissals of senior or high profile employees by considering:
- the extent to which the conduct departed from the expected standard;
- the nature of the employee’s role and the level of tolerance of breach of the expected standards by an employee in that role;
- the commercial and reputational risks resulting from the conduct engaged in; the terms of the employee’s employment contract, and other policies, procedures and related documents;
- the avenues of legal redress open to the employee; and mitigating circumstances of the employee.
- Employees have to be aware of the standards expected.
If an employee is guilty of causing reputational damage.
If an employee is guilty of causing reputational damage, no matter how wide scale or before how many followers. An employer reserves their right to investigate and possibly take disciplinary action. In the case of the 7News scandal. Channel 7 appears more concerned with who leaked the video than what was actually said. Whilst many agreed with what the news anchors were saying, despite their profanity and offensive language. 7News reserves the right to balance the risk of reputational damage resulting from the conduct. In turn chose to take no action if they believe it has not impacted their business negatively.
Conclusion to: Should they be sacked? Two 7News Anchors Caught Cussing out Djokovic.
My name is Gary Pinchen, author, principal and owner of A Whole New Approach. We are leading workplace advisors and representatives. AWNA are at the forefront of commentary, research, and change, anything to do with the workplace for 20 plus years. AWNA are not lawyers, this is all we do. Examine at the blogs, well researched, a diversified list of subjects. It is not a list of “info commercials” to get better ranking for Google. We assist in all Fair work Australia and Fair work Commission matters, unfair dismissal issues, serious misconduct, probation issues, forced to resign. Probation period concerns, Workers rights, employment rights, toxic workplaces
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 See video here: https://www.youtube.com/watch?v=HliNLBvLV0M
 Fair Work Regulations 2009, Reg 1.07(2)(b).
 Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998); see also Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining  FWC 6018 (Saunders C, 9 September 2016) at para. 104.
 Print Q9292 (AIRC, Ross VP, 4 December 1998).
 Rose v Telstra Corporation Limited, Print Q9292 (AIRC, Ross VP, 4 December 1998); cited with approval in Farquharson v Qantas Airways Limited, PR971685 (AIRCFB, Lawler VP, O’Callaghan SDP, Raffaelli C, 10 August 2006) at para. 25, [(2006) 155 IR 22].
  FWC 2174.