Bullying and Dishonesty - Valid Reasons for Dismissal

Background

In August this year we successfully represented Patrick Port Logistics Pty Ltd in an unfair dismissal claim brought by Phillip Slater (Mr Phillip Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204). At the time of his dismissal Mr Slater had been employed by the Company as a driver for about 6 years and was the Transport Workers' Union Co-Delegate on site. Mr Slater's employment was dismissed for inappropriate and abusive behaviour towards another employee and dishonesty during the investigation into his conduct.

The inappropriate and abusive conduct by Mr Slater included raising his voice, pointing at another employee and swearing at the employee. Mr Slater denied the conduct throughout the Company's investigation into it and before Fair Work Australia, despite there having been 3 witnesses to the conduct. Mr Slater had been warned about similar conduct in the past.

Observations and findings

In the decision SDP Sams observed and found that:

• Swearing in the workplace is entirely different from the use of swearing or foul language in an aggressive or abusive manner with an intent to threaten or intimidate another employee. The distinction was demonstrated in a single member decision (see related article here) that was upheld on appeal.
• The exchanges between Mr Slater and the victim were not in the "ordinary course of robust, heated or forceful dialogue" between a union delegate and a manager – as was put by Counsel for the union. Nor was it just workplace banter, nor was Mr Slater pursuing a general industrial dispute at the time. His complaint was a personal one i.e. that he was not provided overtime on the night in question and his intended purpose was to cause grief for the victim.
• Mr Slater’s claims that he did not call the victim "a piece of shit" but merely said as an aside to Mr Sterling "this is bullshit" were disingenuous and untrue which gave SDP Sams cause to doubt much of his other evidence, particularly where it conflicted with the Company’s witnesses.
• Mr Slater’s prior warnings were critical to the finding that the dismissal was not harsh, unreasonable or unjust, they were indicative of an employee who displays aggressive and abusive behaviour and who is not prepared to accept "even a skerrick of responsibility for his actions".
• As to the explanation Mr Slater offered for the incident that led to his dismissal, SDP Sams found it to be unconvincing, disingenuous and designed to deflect attention away from his own unacceptable conduct. The Company was correct in finding that Mr Slater was less than open and frank in his responses during the investigation.
• The test for abusive or aggressive behaviour is not whether the applicant believed he acted in that way but whether a reasonable person might have felt intimidated and fearful by the behaviour. SDP Sams accepted that the victim was entitled to feel intimidated and fearful of Mr Slater’s conduct towards him.
• "In the end, the applicant’s collection of explanations became a farrago of implausible and unlikely responses to a sound and defensible case validating his dismissal".
• FWA can find no basis for a conclusion that the applicant’s dismissal was "harsh, unreasonable or unjust", either substantively or procedurally" and the application is dismissed.

Key messages

The case illustrates the importance of:

• policies and procedures on Bullying, Harassment and Discrimination and evidence of the training and enforcement of them;
• clear and unequivocal written warnings that articulate the conduct resulting in the warning and put the employee on notice that a repeat of the conduct will lead to disciplinary action including dismissal;
• putting all allegations against an employee to them in writing and allowing them the opportunity to respond to each allegation within a reasonable period of time and in the presence of a support person;
• proper investigation of any disputed facts relating to allegations including by taking statements from complainant(s )and witness(es); and
• making findings in writing based on available evidence and (in writing) requiring an employee to show cause why their employment should not be terminated on the basis of the findings within a reasonable period of time and in the presence of a support person.

If you would like assistance with a workplace investigation, warning letters, dismissal documentation and/or representation in an unfair dismissal, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.