The termination of a hospital orderly for taking a photograph of a naked two-year-old patient has resulted in the Full Bench of the New South Wales Industrial Relations Commission ruling that his employer unfairly dismissed the orderly and that the employee be re-employed.
The 64 year old orderly had taken a photo of the two-year old patient from the waist up, using his camera phone. The orderly claimed that the photo was a 'joyous expression' to reward the young patient's bravery while in the hospital. The orderly did not seek the permission of the patient's parents nor of the hospital prior to taking the photo.
The orderly denied that there was any sexual motive to his taking the photo and deleted the photo from his camera phone soon afterwards.
Whilst accepting that there was no sexual motivation to the photography, the hospital however considered the photographing as serious misconduct and summarily dismissed the orderly, even though his 10 years of employment had been without prior incident.
The Full Bench noted that to justify a summary dismissal, an employee's conduct must have been so serious a breach of contract that by the standards of fairness and justice, the employer should not be bound to continue the employment. The Full Bench further noted that whilst the orderly had not breached a specific term of the employment contract which required him not to take such a photograph, the orderly had acted inconsistently with his duty of fidelity and good faith to his employer.
While it was a foolish, but innocent act, the Full Bench decided the taking of the photograph deserved sanction, but did not warrant summary dismissal. As the act had led to the employer losing confidence in the employee, the Full Bench ordered reinstatement with back pay from July 2007 to 2 July 2009, but on the proviso that the orderly immediately resign with no loss of benefits.
The case is a reminder to employers that summary dismissal is a drastic remedy which should be implemented with due consideration of the reason for the dismissal and application of a fair process. The employer bears the onus if challenged, to show that summary dismissal was warranted rather than perhaps termination on notice, or other disciplinary action.
If you require further information about dealing with matters of this nature in your workplace, contact Ian Curlewis on 9288 6756, email: ian.curlewis@lavanlegal.com.au, Michael Jensen on 9288 6944, email: michael.jensen@lavanlegal.com.au or Benn Wallace on 9288 6741, email: benn.wallace@lavanlegal.com.au.
