This month we look at a recent unfair dismissal decision of the Fair Work Commission.  Deputy President Sams, in determining that the employee’s termination was not harsh, unjust or unfair, was highly critical of the self-represented applicant who had been dismissed by her employer for a loss of “trust and confidence in her ability to perform her role which had posed a health and safety risk on her work colleagues”.  

Background

The employee commenced in the position of Technical Consultant on 4 February 2019.  The employee worked in the Technical Services Team along with three other Technical Consultants, all reporting to the Technical Services Manager (‘Manager’).

In late 2019, the employee’s Manager raised concerns about the employee’s performance and hostility towards her.   The employee then made allegations against her Manager, alleging improper conduct.  The employee later had the allegations against her Manager expanded and formalised in a solicitor’s letter dated 13 February 2020.

The employer then engaged an external investigator to investigate the employee’s complaints.  In July 2020, the investigator reported that none of the employee’s allegations were substantiated.  The employer, during this same period, also conducted its own investigation into a parallel whistleblower complaint made by the employee with the employer’s Chief Compliance Officer.  The Employer concluded that those allegations were unsubstantiated.

On 31 July 2020 the employee was required to attend a meeting to discuss the outcome of the investigations.  At the end of the meeting, the employee was advised that her employment was terminated.  Later the same day the employee was provided with a letter confirming the termination.   The employee was paid her relevant entitlements, including four weeks in lieu of notice of termination.

The employee immediately filed an application for unfair dismissal remedy seeking reinstatement.

The Hearing

The employee, who was legally trained, represented herself during the hearing, despite being represented by two different lawyers and a union earlier in the proceedings.

Deputy President Sams took the unusual step of commenting about the employee’s conduct in cross examining the employer’s witnesses, describing it as “rambling and unfocussed” and that:

“Despite my frequent interventions and explanations, the applicant simply ignored my directions to conduct her cross examination properly and respectfully. At two points, I had to warn her that unless she did so, I would adjourn the proceedings until she complied. Needless to say, she ploughed on regardless”.

The Deputy President noted that the employee’s conduct during the proceedings demonstrated that should the employee’s dismissal be found to be unfair, reinstatement was not an option – he stated:

“Moreover, her courtroom conduct was entirely emblematic of her attitude to work and her work colleagues which ultimately led to her dismissal. More significantly though, her animus and hostility towards the senior management witnesses, makes the prospect of her reinstatement (assuming she succeeds in establishing her unfair dismissal), utterly unthinkable…”.

General Observations

Deputy President Sams made the following general observations about the facts of the case and employment related complaints generally:

1. Formal allegations by an employee that are later found to be trivial or vindictive may constitute a valid reason for an employee’s dismissal.
2. It is not uncommon that allegations of bullying or harassment by an employee be motivated not by a concern for the employee’s own health or safety, “but by silly and trivial personality clashes between work colleagues, or worse, vindictiveness, revenge, retaliation or jealousy”.
3. “It is sometimes the reality that the person who alleges they are being bullied, turn out to be the bully themselves”.
4. From experience the “vast majority” of stop bullying applications are initiated by employees who are the “subject of disciplinary or performance issues” and such applications are used to “deflect attention”.
5. That it is rare for an employee who makes unsubstantiated allegations, to accept the outcome of any investigation (internal or external).
6. Generally, an employee claiming to be a victim of workplace bullying or harassment will provide a medical certificate from the GP for absences indicating that the absence relates to the “stress and anxiety they are experiencing. It is more appropriate for the employer to receive a “cogent, detailed specialist evidence from a psychologist or psychiatrist”.
7. An employer does not need to comply with an employee’s request that all email and conversations be backed up by email and “if this was so, a business would soon grind to a halt”.
8. There is a distinction between “a person who is perfectly capable of performing their job and has no performance issues, with the same person whose poor conduct, hostile interactions with colleagues and defiance of management directions, makes them virtually impossible to manage and causes untold disruption and discontent in the workplace”.
9. Where an employee’s conduct is inconsistent with “the trust and confidence expected in the employment relationship” and is an “obvious risk to health and safety” of work colleagues, a decision to dismiss the employee is the “only sensible, practical and logical decision”.
10. During an investigation, it is not necessary to interview and take statements from every person involved in an allegation or complaint.

Valid Reason for Dismissal

Deputy President Sams made pointed comments concerning the employee, including that her “extraordinarily high opinion” of herself was “delusional, divorced from reality and totally inconsistent with [her] actual conduct and behaviour in the workplace.”

The Deputy President considered that the employer had a valid reason to terminate the employee because her conduct amounted to misconduct in that:

“she made serious, unsubstantiated allegations against [her Manager] and others, which she knew to be false, trivial or explicable. None of these allegations amounted to bullying or harassment. In truth, the applicant was the bully, not the bullied. Her actions and conduct posed a risk to the health and safety of work colleagues and constituted a fundamental and irreparable breach in the trust and confidence of the employment relationship”.

The Deputy President was also critical of the fact that the employee did not consider the “hurt and anxiety she was inflicting on others” and that her “actions, conduct and views” demonstrated the opposite of a willingness to work with her Manager and team.

Procedural Fairness

The Commission acknowledged that while the employee was not “strictly told of the reasons for her dismissal in the termination letter” there could be no doubt that the making of “serious unsubstantiated allegations against other employee and manager, might result in her dismissal” (sic).

Interestingly, Deputy President Sams concluded that “the reasons for dismissal do not need to be the same reasons in the termination of employment letter” because in this case it would require a termination letter of “mammoth proportions”.

The Deputy President did concede that the employee should have been provided with the investigator’s findings at least 24 hours before the dismissal meeting and provided more of an opportunity to respond.  However, he also formed the view that a longer process was likely to be unproductive and that the employer “had to act promptly to protect his other employees” as the employee’s continued presence in the workplace would be an “unacceptable risk to the health and safety of work colleagues”.

Other Matters Considered

Financial Pressure, Anxiety and Stress

The Deputy President accepted that the employee had “experienced financial pressures, stress and anxiety” concerning her dismissal however the employee’s conduct outweighed any mitigating factors.  Deputy President Sams was again critical of the employee who “refused to acknowledge any fault, her failure to apologise for her conduct, express any contrition or remorse and her failure to recognise the hurt and anxiety she had caused, despite claiming to be emotionally intelligent”.

Post-Dismissal Conduct

The Deputy President determined that the employee’s post-dismissal conduct also formed a valid reason for dismissal as the employee continued to “agitate her grievances and sense of unfairness with senior company managers after her dismissal”.  Deputy President Sams indicated that while the employee’s post-dismissal conduct was not misconduct, the conduct did demonstrate the employee’s selectivity about what she told senior managers and that it “bore no resemblance to the reality”.

Lessons for Employers

We often meet with client’s who have difficult employees and who experience significant difficulty trying to manage those employees (who are often prone to making complaints about others in response to any attempt to manage their own behaviours).  This case reinforces that serious unsubstantiated allegations may constitute a valid reason for termination. It also acknowledges that an employee who is hostile to other employees and defiant of management direction may pose an unacceptable risk to the health and safety of other employees, and may irreparably damage the employment relationship, and that too may be justification for a termination. However, this case also reiterates the need for good processes, both in terms of investigating complaints and then in terms of any subsequent termination process.

Aitken Legal recommend that employers contact one of our specialist employment lawyers when dealing with a difficult employee, and when considering terminating an employee’s employment.  Aitken Legal also reminds employers that our lawyers are experienced in conducting workplace investigations.

[2020] FWC 6972

Names removed after numerous requests from the applicant.  If you require further information, please contact Aitken Legal.