'This is poor employee management,' says FWC
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who was terminated from his employment after alleged misconduct at a meeting. The worker, who was employed as a construction manager, lodged an application with the FWC seeking a remedy for his dismissal, which he claimed was unfair.
The case brought to light several important issues in employment law, including the grounds for summary dismissal, the role of procedural fairness in termination decisions, and the importance of clear communication and documentation in managing employee performance and conduct.
The decision also highlighted the challenges that can arise when personal conflicts and disagreements between employees escalate into formal complaints and disciplinary action.
The worker started full-time employment with the employer as a project manager in September 2022 and was promoted to construction manager in May 2023. The employer raised several issues with the worker's conduct and performance, including inappropriate communication with colleagues and customers, which allegedly had a financial impact on the company and damaged its reputation.
However, these alleged issues were not flagged with the worker as reasons for dismissal, nor was evidence provided of the warnings, aside from the operations manager's statement.
The main reason relied upon by the employer for the worker's dismissal stemmed from a meeting on 11 September 2023, where the worker allegedly swore at and berated the general manager in the presence of other employees.
The employer claimed that the worker was upset, frustrated, repeatedly swearing at the general manager, telling her to do a better job, and refusing to de-escalate the situation.
The worker, on the other hand, stated that while he raised his voice and said "bullshit" when discussing unpaid invoices, he did not shout or swear at her.
The worker refuted the employer's allegations, stating that while there was tension between him and the general manager during the meeting, he did not engage in the conduct alleged by the employer.
He acknowledged raising his voice and using the word "bullshit" when discussing unpaid invoices but maintained that his conduct did not amount to misconduct or serious misconduct.
The worker's legal representative questioned the credibility of the employer's evidence and the decision to allow the worker to continue working for several days after the alleged incident on 11 September 2023.
It was argued that if the worker's conduct had been so serious, the employer would have taken immediate steps to prevent him from returning to the workplace and interacting with the general manager.
The FWC assessed the credibility of the witnesses provided by both the worker and the employer. The Commission found the worker to be a credible witness, with his evidence being consistent with his statements.
In contrast, the evidence provided by the employer's witnesses, including the operations manager, general manager, and Director, was treated with caution, as there were inconsistencies between their statements and the evidence adduced during cross-examination.
The FWC noted that given the seriousness of the allegations and the senior position held by the worker, it was doubtful that the employer's witnesses could not recall key facts about what was said during the meeting on 11 September 2023.
The Commission also questioned the motives behind some of the witness statements, suggesting that they may have been provided under pressure to support the employer's case.
In determining whether the worker's dismissal was unfair, the FWC considered the criteria set out in section 387 of the Fair Work Act 2009, which includes whether there was a valid reason for the dismissal related to the worker's capacity or conduct.
The Commission found that the employer had not substantiated the reasons for the worker's dismissal, stating:
"The worker's conduct did not amount to any form of misconduct or serious misconduct during the meeting on 11 September 2023. [The employer’s] evidence did not provide a reliable or credible account of events."
The FWC also noted that the general manager's dissatisfaction with the worker questioning her work, and her threat to resign, appeared to be the main driver behind the decision to dismiss the worker.
During cross-examination, the operations manager acknowledged that the general manager had threatened to resign if the worker was not dismissed and that she was asked to draft the worker's dismissal letter despite being the complainant in the matter.
The Commission emphasised the importance of procedural fairness in dismissal decisions, as highlighted in previous cases, such as Smith v Bank of Queensland Ltd, where it was stated that the dismissal must be a justifiable response to the relevant conduct or issue of capacity.
In conclusion, the FWC found that the worker's dismissal was unfair, as the employer had not provided a valid reason for the termination.
“A more formal process could have been implemented before dismissal. It would not have warranted summary dismissal. This is poor employee management,” the FWC said.
“The [employer] will need to reflect on its practices and process regarding how they manage their employees in the future. It is not onerous to have a conversation with the [worker] if there were any issues or concerns regarding his conduct or behaviour. If the [employer] had dealt with the issues of the [worker]'s approach to his colleagues through written warning, this could have better substantiated the reasons for dismissal. No issues were raised with the [worker],” it added.
“The way the dismissal was sprung on to the [worker] demonstrated a lack of common courtesy or respect,” the FWC said. Thus, it ordered the employer pay the sum of $71,187.07 to the worker.
The Commission's decision underscored the need for employers to ensure that dismissal decisions are based on well-founded reasons and are procedurally fair.
The decision also highlighted the importance of clear communication and documentation in managing employee performance and conduct issues, and the challenges that can arise when personal conflicts and disagreements escalate into formal complaints and disciplinary action.
