FWC underscores importance of appropriate conduct towards all staff members
The Fair Work Commission recently dealt with an unfair dismissal case where a store manager challenged her dismissal from a charitable organisation following allegations of inappropriate workplace conduct.
She argued throughout the proceedings that an investigation into her behaviour was flawed and that the complaints against her were orchestrated.
The store manager's case centred on events following her previous area manager's resignation in February 2023. She said she felt targeted, claiming she became the subject of numerous coordinated complaints.
She particularly questioned the timing of multiple complaints emerging within a short period, emphasising that none of the volunteers she supervised had raised concerns about her conduct.
The store manager challenged both the investigation process and its findings. She argued that the allegations lacked evidence and were simply unproven claims. She also noted that the timing of her dismissal, just as she was approaching eligibility for long service leave, suggested ulterior motives.
In July 2024, the charitable organisation suspended the store manager following several complaints about inappropriate conduct. The organisation's HR department received complaints from five employees in May and June 2024, including duty managers who worked directly with the store manager.
The HR partner gave evidence that after receiving these initial complaints, the organisation engaged an external consultant on 14 June 2024 to conduct an investigation. The store manager was suspended on 1 July 2024 pending the investigation's outcome, with the suspension extended several times as the investigation continued.
In early September 2024, the store manager received details of eight principal allegations about her conduct towards other workers, supported by 46 specific examples.
The organisation's area support manager informed her that if these allegations were substantiated, they would constitute breaches of the organisation's code of conduct.
Multiple duty managers provided evidence about the store manager's interactions with volunteers who had special needs. A duty manager testified about witnessing an incident where the store manager publicly criticised a volunteer with autism spectrum disorder, describing how "customers were in shock" and the volunteer was visibly distressed.
The Commission found: "[The worker] criticised [the volunteer] for not leaving the counter, and that she did so in a condescending tone, in front of customers, causing [the volunteer] to be visibly embarrassed." This finding was supported by witness testimony detailing the volunteer's visible reaction to the criticism.
The HR partner testified that when asked in a disciplinary meeting what she would do differently given the allegations, the store manager responded "nothing." The Commission noted this demonstrated "a lack of perspective on the effect of her conduct on other people, as well as empathy for her colleagues."
The Commission assessed whether the dismissal was harsh, unjust or unreasonable under section 387 of the Fair Work Act 2009. It found the organisation had a valid reason for dismissal, stating:
"[The worker's] remarks to and about [the volunteer]; her comment to [another volunteer]; her interactions with volunteers which made at least some of them leave [the organisation]; and her comments about [other staff members]... contravened the code of conduct."
The Commission emphasised the particular context of a charitable retail environment: "It is particularly important for [the employer] to have high standards of behaviour, and not to tolerate inappropriate conduct towards others, as this can reasonably be expected to deter volunteers from working at [the employer], especially volunteers who have special needs."
In dismissing the application, the Commission concluded: "Taking into account all of the circumstances, I conclude that [the employer's] dismissal of [the worker] was not harsh, unjust or unreasonable. It was a proportionate response to her conduct. It was not unfair."
