Commission looks at how employer handled workplace complaints
The Fair Work Commission (FWC) recently dealt with a case involving allegations of threatening behaviour in the workplace and subsequent dismissal. The case highlights the importance of thorough investigations and the complexities of workplace disputes.
In this case, a long-serving employee was dismissed after allegedly making threats to a colleague. However, the FWC's decision raises questions about the burden of proof in misconduct cases and the role of witness testimony in unfair dismissal claims.
The worker had been employed by a large steel manufacturing company for over 30 years, having started in January 1991. He was a level 4 electrician under the company's enterprise agreement, with the job title of “instrumentation tradesperson.”
In September 2023, he received a first and final warning following complaints about his behaviour towards colleagues. This was the first disciplinary action taken against him in his long career. The warning stemmed from an anonymous complaint made in July 2023 through the company's Business Conduct Reporting Hotline.
The substantiated allegations included using offensive language towards colleagues, yelling at co-workers, and acting in an intimidating manner during a morning meeting.
As part of the disciplinary action, the worker was moved to a different department and directed to undergo refresher training on the company's policies regarding bullying, harassment, and code of conduct.
A few months later, on 16 January 2024, another incident allegedly occurred. A colleague claimed the worker had yelled threats at him from his car as they were leaving work. Specifically, the colleague alleged that as he drove past the worker's stationary car at an intersection, the worker yelled, "You're a dead mother****er. I'm gonna get you."
The employer's electrical services manager received a call about the incident at 3:48 pm that day. She met with the complainant at 4:00 pm and noted he appeared visibly distressed.
The employer's investigation into the alleged threat was brief. The electrical services manager interviewed the complainant on the day of the incident and arranged a meeting with the worker for 8:00 am the following morning.
The worker consistently denied making any threats, stating his car window was up due to using air conditioning on a hot day.
Despite the worker's denials, the employer concluded that the threat had been made. On 21 February 2024, about five weeks after the alleged incident, the worker's employment was terminated.
The worker argued there was no valid reason for his dismissal as he did not make the alleged threat. He questioned the likelihood of such a threat being heard clearly between moving vehicles and noted he had been happy in his new role following the earlier warning.
The employer relied largely on circumstantial evidence to support its decision. This included the complainant's prompt reporting of the incident, his apparent distress, and the employer's belief that the worker had a motive to threaten the complainant due to the earlier complaints.
Crucially, the complainant did not give evidence at the FWC hearing. The employer chose not to call him as a witness, citing concerns for his wellbeing. The electrical services manager stated, "I felt we had all of the information we needed," when explaining why the complainant wasn't formally interviewed after the worker denied the allegations.
The FWC found there was no valid reason for the dismissal. The Commissioner accepted the worker's evidence as "consistent, considered and compelling" in his denial of the allegations.
The Commissioner rejected the employer's circumstantial evidence, finding it did not prove the alleged threat occurred. The decision emphasised that a complaint being made promptly does not necessarily make it true.
The FWC also identified potential procedural fairness issues with the dismissal process. The Commissioner noted that the employer failed to put the worker's explanations to the complainant or to conduct a more thorough investigation.
The brevity of the investigation was highlighted. The complainant made his complaint on 16 January 2024, provided an email at 7:25 am the following morning, and the worker was called to a meeting just 35 minutes later at 8:00 am.
Having found the dismissal was harsh, unjust and unreasonable, the FWC ordered reinstatement. The Commissioner concluded that since the worker did not undertake the conduct alleged, reinstatement was not inappropriate.
The FWC also ordered back pay and continuity of service, effectively treating the dismissal as if it had not occurred. The worker was to be reinstated within 21 days of the decision.
This case underscores the importance of thorough workplace investigations, particularly when allegations of serious misconduct are involved. It also highlights the challenges employers may face when key witnesses are unwilling or unable to testify in unfair dismissal proceedings.
