After ignoring multiple chances to respond, worker challenges termination
A worker challenged his dismissal before the Fair Work Commission (FWC), arguing that his employer had unfairly ended his employment. He claimed that he was not given a fair chance to respond to allegations against him and that the employer's handling of the matter was procedurally flawed.
The worker maintained that his dismissal was based on unfounded claims and that the investigation into his conduct was conducted without his input. He also said that his employer had communicated to others, including his clients, that he was no longer with the company before any decision had been formally reached, causing damage to his professional reputation and financial position.
The employer defended its actions, stating that the worker had engaged in inappropriate and aggressive behaviour towards colleagues and customers, leading to serious concerns.
It argued that the worker was given an opportunity to explain his side of the story but repeatedly refused to participate in the investigation.
The worker was employed as a salesperson with the company from October 2022. Over time, management raised concerns about his conduct, citing difficulties in his interactions with staff and clients.
The employer said that the worker repeatedly failed to follow established procedures and that his conduct created an uncomfortable environment for other employees.
The worker disagreed, arguing that his disputes with management did not amount to misconduct. He recalled a meeting in October 2023 where he was reprimanded by senior management. During the hearing, he described what happened at that meeting:
“[The manager] basically telling me that I thought I knew how to run the company better than [the employer] did, and that I had better pull my head in, pull my socks up, and a number of other things.”
He also recalled being told that he only contacted management when he was at home drinking, which he considered an unfair remark:
“[The employer] made a comment to me that I only contact [them] when I was at home [and] drunk.”
The employer said the worker had been given repeated instructions to follow company policies and that his failure to comply was creating workplace tensions. It argued that staff members had raised concerns about his behaviour and that his conduct required intervention.
The situation escalated on 7 June 2024, when a tenant contacted the company’s property management team with a complaint about the worker. The tenant said she had not been notified about an open inspection scheduled for her rental property and had only discovered it through a friend.
She had recently returned from a hospital stay with her child and was distressed to learn that the inspection had been planned without her knowledge.
The employer’s property manager spoke with the tenant, who described feeling unsafe. The property manager recalled the conversation in evidence:
“[The tenant] was quite distraught on the phone. She was crying … she said that she didn’t know what to do, that she felt threatened in her own home.”
Following this, the property manager reported the matter to senior management. An email summarising the complaint stated:
“[The tenant] mentioned multiple times that [the worker] threatened her. She feels unsafe and does not want any further communication with [him] moving forward.”
The worker denied these claims, stating that he had only informed the tenant about the inspection and explained the landlord’s rights. He said he had not made any threats or acted aggressively towards her.
After the complaint was received, the employer arranged a meeting for 11 June 2024 to discuss the issue with the worker. The employer informed him that he could bring a legal representative if he wished. However, the worker refused to attend the meeting and instead requested a written statement of the allegations.
The employer explained that the purpose of the meeting was to hear his version of events and investigate the matter. The worker responded: “I respectfully decline to attend the meeting. As is my legal right at the workplace.”
The employer attempted to reschedule and emphasised that refusing to engage could impact the outcome of the investigation. However, the worker remained firm, writing:
“Once again, I must reiterate my legal rights to say nothing. Whatever else you want to choose to do in this matter is your choice and your right.”
As the worker chose not to participate in the investigation, the employer continued gathering evidence from staff and clients to assess the situation.
On 11 June 2024, the employer informed staff via email that the worker had been stood down from work. In a separate email, the employer advised the worker that he would not have access to company systems and was not permitted to attend the office, except to collect personal items.
Shortly after, the worker discovered that some of his clients had been informed that he was no longer employed, despite the investigation still being in progress. He raised concerns with the employer, writing:
“I find it highly inappropriate that you have contacted my clients to inform them that I am no longer with the business before the investigation has concluded.”
The employer responded that it had not made a final decision at the time but had an obligation to inform clients about changes affecting their accounts.
On 17 June 2024, the employer formally dismissed the worker, citing serious misconduct. The dismissal letter stated that the worker’s conduct posed a serious and imminent risk to the business, particularly its reputation, and referenced “threats to a customer” and “offensive conduct” toward management.
The worker had maintained his refusal to engage in discussions about the allegations, but the employer noted that he had been given multiple opportunities to respond. The dismissal letter included the following statements:
“As you are aware, we attempted to meet with you last week in relation to claims of threatening behaviour. You declined this meeting and as a result, we had no option but to stand you down and investigate.”
“Further to this, the consistent feedback from your colleagues, regarding feeling intimidated or threatened by your conduct, is not acceptable and cannot continue.”
The employer determined that the worker’s actions met the definition of serious misconduct under the Fair Work Regulations 2009, justifying immediate dismissal without notice.
The FWC assessed whether the dismissal was unfair, considering factors such as whether there was a valid reason, whether the worker was notified of the reason, and whether he was given a fair opportunity to respond.
The FWC found that the employer had a valid reason for dismissal, based on evidence of aggressive and threatening behaviour. The worker had been informed of the allegations and given opportunities to respond but refused to participate. The employer conducted its investigation using available evidence after the worker declined to engage.
The Commission noted the worker’s repeated refusal to provide his account of events, stating: “Procedural fairness is an invitation. [The worker] chose not to accept the invitation.”
It also concluded that the employer had legitimate grounds to terminate his employment: “The reason for the dismissal was sound, defensible, and well-founded.”
“Taking into account all these factors, I do not consider the decision to dismiss [the worker] was harsh, unjust or unreasonable.”
The FWC dismissed the worker’s claim, ruling that his dismissal was not unfair under the Fair Work Act.
