A sacked public servant compensated for his harsh dismissal has lost his bid to get his old job back.
In July last year the Industrial Relations Commission awarded Graham Lucas $17,000 after deciding the Health Department had failed to follow proper procedures in the management and dismissal of its employee.
Lucas, a rehabilitation consultant, had been sacked from his $73,000 a year job on 11 September 2012, having worked in the South Australian public service since 1983.
The department’s concerns with Lucas’s performance dated back to 2007 and included misuse of Government resources to send emails with photos of penises, breasts and “risque” images.
Lucas appealed his sacking under the Fair Work Act and won a compensation payment. The Commission’s Deputy President Karen Bartel, however, ruled that the Health Department should not be required to re-instate him to his old position or some other position.
Lucas appealed that part of the finding.
The Full Bench of the Industrial Commission published its decision this week, upholding the orders of Judge Bartel.
Lucas was sacked from his $73,000 a year job in September 2012 for misconduct relating to absences from work, file management, not turning up to meetings with a number of clients, and using work resources and equipment to distribute inappropriate emails.
“The emails variously contain photographs of model penises of varying sizes, allegedly taken from ‘National Penis Day’* celebrations in Japan; what might generally be deemed ‘risqué’ photos of women, one showing breasts and partial nipples exposed; a number of ‘jokes’, a small proportion of which may be deemed crude; and one ‘Irish joke’ about a Methodist pastor, a Rabbi and a Catholic Priest entering a brothel,” the IR Commission’s summary shows.
In the initial hearings before the Commission, Lucas said he didn’t dispute that he sent the emails, but stated that they were not created, just forwarded by him and that they were sent to known recipients who would not be offended by them.
“He stated that receiving and forwarding the emails allowed him to relax. He stated that he had no intention to offend anyone or to damage the reputation of the employer,” the court file showed.
The Health Department provided evidence from Lucas’s superiors to demonstrate his poor performance as a rehabilitation consultant.
Most of the material wasn’t disputed.
In his defence, Lucas cited constant changes to his role, lack of administrative support, a complex client base and lack of clarity on his role.
The Full Bench said the original decision should stand, given the long history of Lucas being unable to change his ways.
It also said the Department of Health had to provide appropriate standards of service.
“For an organisation to accept the appellant’s demonstrated performance as an appropriate standard of service, would rightly lead to censure and criticism,” the judges concluded.
“What … is quite remarkable is that the appellant was subject to many earlier warnings including a final warning.
“Whether or not these were related to the same matters as were in issue at the end, they reinforce the conclusion of recalcitrance and his likely resistance to changing his ways.
“We agree with the Deputy President that in the particular circumstances there was a cogent basis to believe that re-employment, whether in his earlier job or in any job with the public service, would not be an appropriate remedy.”
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