Creating reputational risk for an employer may be a valid reason for dismissal

In brief 2 min read

Conduct of an employee that creates a risk to the employer's reputation may be a valid reason for dismissal.

Background

On 20 September 2021 Mr Omar Chebbo, a mobile crane operator employed by Major Crane Logistics Pty Ltd (Company) attended an anti-vaccine mandate rally in Melbourne. The protest was attended by almost 2000 individuals who became violent, throwing rocks and bottles at police and damaging the CFMEU's office. In response to the protest and ongoing health concerns, the Victorian Government ordered a two-week shutdown of Victoria's construction industry. The following day, Mr Chebbo was summarily dismissed from his employment. The Company considered that Mr Chebbo's attendance at the protest, which was in contravention of the Victorian Government's stay-at-home orders, put the Company's reputation at risk.

Decision

Mr Chebbo made an application for an unfair dismissal remedy claiming that his conduct could not be regarded as serious enough to warrant dismissal and especially not summary dismissal, because:

• his attendance at the protest had no connection to his employment; and
• the protest was no different to many other industrial protests that have occurred in previous years.

The Commission determined that Mr Chebbo's attendance at the protest had several connections to his employment. Firstly, Mr Chebbo attended the protest on the Company's time and was being paid for the day in question. Secondly, the protest related to working conditions in the industry, including the closure of tearooms and vaccination requirements for construction workers, which included Mr Chebbo. Further, the Commission determined that the protest on 20 September 2021 was different to other industrial protests as it was 'categorically unlawful'. The protest breached the Victorian Government's stay-at-home orders. Further, the protest was liable to attract public outrage given the disregard shown by construction workers to public health measures that had been imposed in the public interest. Construction workers had been granted special provisions during the pandemic to continue to work when most other sectors had remained wholly or partly closed.

By breaching the stay-at-home orders, Mr Chebbo jeopardised the Company's reputation with the CFMMEU, other construction industry companies (which were a source of work for the Company) and the Victorian Government. Although Mr Chebbo was not wearing clothes identifying his employer, he was still identifiable because he had been in the industry for a long time. His presence at the rally created the risk that observers would think that the Company had endorsed Mr Chebbo's attendance at the protest, particularly because it had occurred on a work day.

The potential impact Mr Chebbo's conduct had on the Company's reputation was a valid reason for dismissal, however, it did not amount to serious misconduct and therefore summary dismissal was considered harsh. Mr Chebbo was awarded his notice period.