Treatment of subordinates deemed serious misconduct in FWC ruling
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim involving allegations of inappropriate workplace conduct, including bullying, intimidation, and derogatory language directed at subordinates and female colleagues.
The worker argued that management was trying to push him out of his job and had fabricated complaints against him. He claimed he was suffering from stress due to the workplace environment and filed his own bullying application against several managers, maintaining he had never treated subordinates inappropriately or used derogatory language.
The case highlights tensions between conflicting workplace narratives—with a supervisor claiming victimisation while subordinates described a hostile work environment. The worker's position of authority over younger employees became a pivotal factor in the FWC's examination of the case.
The dismissed worker was a 41-year-old qualified diesel mechanic employed as a leading hand at a rural farming equipment business. He supervised several younger employees at the employer's workshop in Eyre Peninsula, South Australia, allocating work and overseeing their activities.
Complaints about the worker's behaviour included allegations he referred to female administrative staff as "the bitches upstairs" and "service bitches," intimidated subordinates who made complaints against him, and created what witnesses described as a toxic atmosphere where colleagues felt they "would walk on egg-shells" around him.
A key incident occurred when the worker allegedly tried to identify who had reported him. An apprentice service technician testified that the worker approached him, pointed his finger, and asked if he had "snitched him out" to the branch manager, calling him a "dog ass." The apprentice said he felt intimidated by this confrontation.
Another technician who worked daily with the worker testified that the leading hand would use his authority to assign less enjoyable jobs to individuals not in his favour, a practice that would "rotate depending on changing workshop relationships."
The FWC heard that workplace issues had surfaced earlier. In August 2023, the service manager had placed the worker on a performance management plan after a previous complaint that he was "picking on" another staff member.
This management plan aimed to "educate [the worker] about language and effective communications in the workplace." However, addressing the worker's behaviour received "lesser priority" during a period when the business was changing ownership.
The worker denied all allegations and counter-claimed he was being bullied. On 27 August 2024, he filed a bullying complaint against the service manager, service administrator, and branch manager. He alleged they were trying to "push him out" and had been "making a case out of nothing."
Deputy President Colman found the worker's testimony unconvincing, noting he "had considerable difficulty in answering the questions asked of him" and "came across as belligerent."
In contrast, the apprentice service technician and technician were deemed credible witnesses, despite some nervousness. The Deputy President specifically praised the apprentice, stating: "[The apprentice] should be commended for the courage to stand up to a workplace bully."
The FWC acknowledged issues existed on both sides. The service manager "was not an impressive witness" and had used inappropriate language herself. She had also failed to address similar language from other employees, raising "the question of whether a double standard exists."
Despite these workplace culture concerns, the FWC concluded: "Whilst I have accepted that the workplace culture at the Cummins Branch (including the conduct of [the manager]) was sub-optimal, this does not excuse the conduct that I have found [the worker] engaged in."
The FWC found the worker's behaviour violated his contractual obligations to "Work effectively as a group and mentor other apprentices and qualified technicians and encourage positive behaviours" and "Work with all team members in a professional and safe manner."
"I am satisfied on the evidence that [the worker] failed to act appropriately towards those he Supervised by: The unfair allocation of dirty or less preferred work. Using inappropriate language directed towards female members of [the employer's] staff. Acting in a manner which was not conducive to the maintenance of a collaborative team environment," the Deputy President concluded.
The findings regarding the worker's conduct toward the apprentice service technician were particularly significant: "I find that [the worker] sought to determine who made a complaint against him and acted in an inappropriate manner towards [the apprentice], when taking into account the differences in age, physique and seniority."
The FWC dismissed the unfair dismissal application, emphasising that supervisory positions carry heightened responsibilities for maintaining appropriate workplace conduct.
"I find the conduct towards [the apprentice] was sufficient enough to constitute serious misconduct as defined by the Fair Work Regulations," the Deputy President stated.
The worker's position of authority was central to the decision: "[The worker] was senior in position, service and age and should have known that his conduct (particularly that against [the apprentice]) was grossly inappropriate."
Despite acknowledging the employer's investigation was "protracted and far from efficient," the FWC determined these procedural issues did not render the dismissal unfair.
