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No excuses for bad supervisor behaviour

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 101, 4 April 2006

Two recent decisions highlight the importance of supervisors and managers leading by example when demonstrating appropriate standards of behaviour in the workplace.

Breach of Employer’s Trust

In Cunningham v Australian Bureau of Statistics (2005) AIRC PR963720, the Full Bench of the Federal Commission considered the seriousness of a manager cheating in the office footy tipping competition. Mr Cunningham was employed as an Assistant Director. He was responsible for the development and maintenance of the office footy tipping database.

Mr Cunningham was discovered logging into the database on weekends after some games had been played to change his tips. The rules of the competition were that tips for each round had to be finalised before the Friday night game. Mr Cunningham would enter his tips on the Friday and then change them on the weekend to improve his results. Mr Cunningham stood to gain financially from the changes. Unfortunately for him, his changes were logged into the backup of the database.

A formal investigation was instituted for possible breaches of the Australian Public Service Code of Conduct. Mr Cunningham denied most of the allegations. He admitted that on one occasion he had changed the tips because he had forgotten to change them before the Friday night game. He said that he had intended to make the changes so it wasn’t unfair on the other participants in the competition. He said that he did not intend to cheat. This explanation was not accepted and Mr Cunningham’s employment was terminated.

Commissioner Eames at first instance found that there was no valid reason for the termination of employment. Commissioner Eames concluded that changing footy tips is “not work related in terms of the Code of Conduct”.

The Full Bench rejected Commissioner Eames’ conclusion and observed that “trust was a critical element in the employment relationship, particularly at the management level”. As Mr Cunningham was at a senior level and had system administrator privileges, his position carried with it a high degree of trust. The Full Bench concluded that Mr Cunningham’s actions meant that the requisite level of trust no longer existed and there was a valid reason for the termination.
The Full Bench observed that Mr Cunningham’s 14 year unblemished record may have been significant if he had made an early and frank disclosure of all of the alterations he had made. The fact that he abused his position of authority for personal gain was serious enough to justify his dismissal.

Breach of Sexual Harassment Laws

In Mangiafico v Department of Human Services (2005) AIRC PR 963416, the Commission confirmed that supervisors are expected to model appropriate standards in the workplace and must not engage in sexual harassment of their colleagues.

The Department of Human Services discovered that Mr Mangiafico had been engaging in inappropriate conduct in the workplace. In the course of investigating the complaints, other staff members complained about frequent inappropriate physical contact. The allegations included offensive comments, inappropriate hugging and feeling of female employees and inappropriate touching of male employees.

Mr Mangiafico denied the allegations and said that hugging and putting his arm around colleagues was not intended to be in any sexual sense. He said the he was just a “touchy-feely guy”.
The Commission found that his conduct was “not befitting an employee with his level of responsibility” and that he “could reasonably have been expected to have been of sufficient maturity to appreciate that physical contract in the workplace is, in all but exceptional circumstances, most likely to be inappropriate”.

As a supervisor, his duties included modeling appropriate positive behaviours in the workplace. The Commission found that his dismissal was justified in the circumstances.

HR Tips

Supervisors and managers that breach workplace standards of behaviour may be dismissed because they have failed to set an example to their colleagues. It is clear that a higher standard of behaviour is expected of supervisors and managers.

However, in dismissing an employee for these reasons, employers should ensure that principles of substantive and procedural fairness are adhered to.

Craig Taylor
Senior Associate
Australian Business Lawyers