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Worker Loses Unfair Dismissal Case After Failing To Produce Secret Recording

Worker loses unfair dismissal case after failing to produce secret recording

A worker has lost his unfair dismissal claim after failing to produce a secret recording of  bullying by his managers.

The Fair Work Commission found the employee failed to follow a lawful direction to produce the recording.

It subsequently ruled the employer had a valid reason for dismissal, and therefore it was not unfair.

Worker fails to produce secret recording

Tiberiu Mocanu worked for Kone Elevators as an operations manager.

On 7 March 2017, Mocanu alleged that two managers had bullied and intimidated him.

The following day, human resources director for Kone, Kayleen Nottage-Barnes, commenced a formal investigation into his allegation.

She arranged a meeting with Mocanu.

However, he then told her he was not “in the right frame of mind to have a discussion related to work matters at the moment”.

On 21 March 2017, Nottage-Barnes wrote an email to Mocanu to remind him to talk to her about the formal complaint.

Worker takes three months sick leave

After taking three months sick leave, the company contacted Mocanu enquiring about his return to work.

He then revealed he had the secret recording of the alleged bullying and harassment.

However, he then refused two separate email requests to provide a copy of the recording to the company.

Kone even arranged for a courier to pick it up from his house, but he again failed to hand it over.

On 15 August 2017, Nottage-Barnes sent Mocanu a termination letter informing him he had been summarily dismissed for failing to follow a lawful direction.

Valid reason for dismissal

Commissioner Chris Simpson found that Mocanu could have complied with the lawful directions to produce the recording.

“Mr Mocanu was obviously able to operate a computer and draft emails with attachments… it seems obvious that he was not prevented from complying with Kone’s requests.”

Mr Simpson said that “the direction to produce the covert recordings was not illegal, nor was it unreasonable.”

He also noted that the refusal to produce the recordings made it hard for the company to investigate the alleged bullying.

The Commission found the company had a valid reason to sack Mocanu and consequently dismissed his unfair dismissal claim.

‘Put up or shut up’

Miles Heffernan, Director of Litigation at Industrial Relations Claims, says Mocanu should have put up or shut up.

“If there was even a recording in the first place, there is no such thing as a ‘right of silence’,” he said.

“If an employer gives you a lawful direction, you must follow it.

“The Commission found the company had the right to demand a copy of the so-called ‘evidence’, ruling that it was a lawful workplace direction.

“As a result, Mr Mocanu did not have much of a case.”


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