Mr Moskou was completing his Sunday night courier run collecting pathology samples from a medical clinic when he experienced an unexpected and urgent “call of nature”. In the absence of a bathroom nearby, Mr Moskou defecated in the clinic carpark. He made attempts to clean up the incident and tried calling his supervisor – but to no avail. The following morning, staff from the clinic arrived to find faecal matter and soiled toilet paper in the clinic car park. Mr Moskou’s employer was notified of the incident by a rather shocked and unhappy client, the medical clinic.
Urgent Action Required
Mr Moskou’s “incident” had put the employer in a difficult situation. The presence of faecal matter in the clinic’s carpark posed a serious health hazard. Further, as the employer had not been notified of the incident prior to the discovery by the medical clinic, the employer was not able to take immediate steps that may have remedied the situation.
Mr Moskou’s employer sent Mr Moskou a letter outlining the allegations that he had defecated in the clinic’s carpark, had failed to properly dispose of the faecal matter, and that he had failed to notify his employer of the situation. His employer subsequently held a meeting with Mr Moskou after which time Mr Moskou was summarily dismissed from his employment for serious misconduct.
Request for Fair Work to Review Unfair Dismissal
Mr Moskou acknowledged (with embarrassment) that the incident had occurred. However, he argued to the Fair Work Commission that his summary dismissal was disproportionate to the incident that had occurred. He further noted that he had made attempts to clean up the “incident” and had attempted to contact his supervisor by telephone.
Fair Work Agree with Mr Moskou – kind of
After review of the incident, the subsequent action of Mr Moskou, and the actions of his employer, Fair Work agreed that the employer’s summary dismissal of Mr Moskou was unfair. Nonetheless, Fair Work did agree that Mr Moskou’s conduct did in fact warrant his dismissal from employment.
Summary Dismissal vs Dismissal with Notice
An employer may summarily dismiss an employee if they are proven to have engaged in serious misconduct. Serious misconduct refers to actions of an employee that causes serious or imminent risk to another person’s health safety, or reputation or profits of a business; or where an employee willfully and deliberately behaves in a manner that is inconsistent with the contract with his/her employer.
Fair Work was of the opinion that Mr Moskou did not willingly defecate in the medical clinic’s carpark. He was suffering a bout of gastro and the sudden urgency and unexpectedness of the incident left him with few options. However, Fair Work noted that the actions taken by Mr Moskou after this incident were unacceptable and amounted to misconduct. Mr Moskou should have made further attempts to clean up the clinic carpark following the incident. Further, after failing to contact his direct supervisor, Mr Moskou should have made attempts to contact his employer’s higher management team to ensure that they were made aware of the situation and could act with some urgency, to limit the damage to the relationship between the employer and medical clinic.
Accordingly, Mr Moskou’s actions amounted to misconduct that warranted his dismissal with notice, but did not warrant summary dismissal. His employer was ordered to pay Mr Moskou for one week of wages that he would have received had he been terminated with one week’s notice of dismissal.
Lessons for employers:
• The act of defecating in the carpark was not in itself the trigger for Mr Moskou’s dismissal from employment – it was his limited action taken after the incident to remedy the situation and notify his employer
• The distinction between misconduct and serious misconduct is determined by the intention of the employee – did the employee willingly and deliberately behave in a manner that amounts to misconduct? The facts of this case are from the decision of Moskou v Specialist Diagnostic Services Pty Ltd  FWC 8608.
For further information or advice, contact us at firstname.lastname@example.org or visit www.clinlegal.com.au and access our How to Guides: How to Conduct Disciplinary Meetings; and Terminating an Employee for Serious Misconduct.
By Rebecca Hyde, Legal Research and Reporting at ClinLegal in Adelaide. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).