The FWC found the employee’s dismissal was not unreasonable and the fact that he was bipolar was “not a mitigating factor”
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A Coles worker who was terminated for swearing, racism and behaving aggressively towards fellow employees has lost his bid for unfair dismissal.
He argued that his termination was not justified because of his 21 years of service, his medical condition, his denial of multiple allegations against him and that he had not been given a proper opportunity to respond.
However, the Fair Work Commission (FWC) found that the dismissal from Glenferrie Coles in Victoria was not harsh, unjust or unreasonable and the fact that he was bipolar was “not a mitigating factor”.
The FWC also found that the employee’s excuse that Snapchat comments were posted by a friend who had hacked his account was “utterly unconvincing”.
The employee was given a first and final disciplinary warning in June last year following text messages to his customer service manager about her predecessor which regarded concerns about the shift roster.
The text message tendered to Fair Work read: “Bloody retard. Absolutely retard. Bloody OCD f**got and c**t”.
Moreover, the employee allegedly came into the store looking for his customer service manager, saying to fellow team members in the tea room, “Where is Rachel? I want to sort that c**t out. I’m going to deal with that c**t.”
Fair Work Deputy President Ian Masson acknowledged that the Applicant contended that his length of service of 21 years was a relevant consideration.
Masson said the evidence satisfied him that that length of service was considered by the Respondent, firstly when it issued a first and final warning in June 2017 for behaviour which could have in their view justified dismissal on the basis of serious misconduct.
“I am further persuaded that regard was had to the Applicant's length of service by the fact that notwithstanding the Respondent's view that he had engaged in serious misconduct, it made a decision to pay out five weeks' pay in lieu of notice,” he said.
“I am therefore satisfied that the Respondent had regard to the Applicant's length of service in the disciplinary action that it has taken progressively.
“Finally, it was contended by the Applicant that his medical condition was a relevant factor. The evidence revealed that the Respondent took steps to ascertain the nature of the Applicant's medical condition.”
Masson acknowledged that the employer suspended the disciplinary process commenced on 4 July 2017 to allow it to obtain relevant medical information prior to proceeding.
Having received that medical information it regarded itself as sufficiently informed to proceed to conduct the disciplinary process.
“There is nothing in the medical information nor was there any evidence provided that went to the Applicant not being in a condition to be aware of his behaviour,” said Masson.
“I am satisfied that there was a valid reason for the dismissal of the Applicant and that there were no other factors that would lead to a finding that the termination was otherwise unfair.
“I am consequently satisfied that the Applicant's dismissal was not harsh, unjust or unreasonable and consequently he was not unfairly dismissed."
HRD contacted Coles for comment, but did not receive a response prior to publication.
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