FWC checks employer's evidence if reports substantiated
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a team leader who was accused of bullying and discrimination.
The worker, who had been employed since April 2019, argued that she had been unfairly dismissed based on unsubstantiated allegations of bullying and discrimination.
She claimed that the accusations were fabricated to provide an excuse for her termination and that the decision to dismiss her had been made even before she could respond to the allegations.
The worker maintained that she had never bullied anyone nor discriminated against anyone because of their race or religion.
The employer, a mushroom farm, ended the employment of the harvest team leader following accusations of bullying and discriminatory behaviour towards multiple employees over a two-year period.
The allegations against the worker included claims of bullying, racial discrimination, and religious discrimination. These ranged from reducing work hours of certain employees to favouring workers of a particular ethnic background.
The employer said that the worker had engaged in "years of systemic racism and abuse of power." According to the employer, concerns about the worker's conduct were raised after the appointment of a new farm manager in March 2024, who discovered what they described as a 'manipulative streak' in the worker.
After receiving complaints, the employer conducted an investigation, which included speaking with various employees and conducting an anonymous survey. The worker was given an opportunity to respond to eight specific allegations in writing.
In her response, the worker denied all claims, providing explanations for each incident. For example, regarding an allegation of reducing an employee's hours, she stated:
"[The employee] was not at work on 5 January 2024 because she was unwell, and her reduced working hours were a result of her absence on sick leave. There had also been a decrease in production in that period."
The worker argued that most of the allegations were from 2022 and 2023 and had been made by workers who had only spent a few months working at the farm and had since left the company.
The employer presented evidence from several sources, including the farm manager, current employees, and a representative from a work placement company. The farm manager claimed the worker was trying to "frustrate and place mental pressure on her" in connection with her work.
A current employee gave evidence suggesting discriminatory behaviour:
"[The employee] said that in her religion, if a person does a dirty job, they must wash straight away, and that she reminded [the worker] of this rule; but despite this, she and another Sikh, Amrit, were regularly required by [the worker] to do 'bad jobs', including cleaning dirty water from the ground, instead of asking other Gujarati people to do this."
The work placement company representative stated that he had received complaints from 26 workers about their 'sub-human' treatment by the worker, including allegations of yelling, racism, and exclusion.
The FWC found that the employer's evidence was "scanty, conclusory, and largely second hand." Despite the numerous allegations, the Commission determined that not a single one had been substantiated. The decision stated:
"I am not satisfied that [the worker] bullied or discriminated against anyone. Contrary to [the employer's] contention, the evidence in this matter is not compelling."
The Commission emphasised the importance of thoroughly investigating discrimination claims rather than presuming their validity:
"When persons with a protected attribute allege that they have been treated less favourably than others because of that attribute, the appropriate response is to investigate the matter and reach a reasoned conclusion as to whether, on the balance of probabilities, the allegation is actually true. It is unreasonable and unfair to presume that it is."
Based on these findings, the FWC concluded that there was no valid reason for the worker's dismissal. The Commission stated:
"I find that the allegations of bullying, discrimination and inappropriate conduct that were levelled against [the worker] by [the employer] are unsubstantiated. I conclude therefore that there was no valid reason for dismissal."
As a result, the dismissal was deemed unjust and unreasonable, and therefore unfair.
While the FWC found the dismissal to be unfair, it also considered the worker's efforts to mitigate her loss. The Commission noted:
"[The worker] said that she had not applied for any jobs since her dismissal. The Act requires the Commission to consider the efforts of a successful applicant to mitigate the loss they have suffered because of their unfair dismissal."
This lack of effort to find new employment significantly impacted the compensation awarded. The FWC estimated that the worker could have reasonably found new employment within two months and limited the compensation to six weeks' pay plus superannuation.
The Commission explained its decision on compensation:
"It is probably unlikely that [the worker] would have obtained a new job right away. In this early period, the loss of income was caused by the dismissal. But it is likely that at some point, had she made reasonable efforts, [the worker] would have found a new job."
This case shows the importance of having substantial evidence before taking serious disciplinary action. It also highlights the need for workers to actively seek new employment following a dismissal, even when pursuing unfair dismissal claims.
