Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks can often arise from hazards such as workplace conflict or poor workplace relationships.
When considering these hazards, it is important for employers to be mindful that such conduct is not limited to conflict amongst peers or from managers to their reports, but also conduct from employees that affects their managers.
In the recent unfair dismissal decision of Pawelczyk v Commonwealth Bank of Australia [2024] FWC 2115, the Fair Work Commission (FWC) found that an employee’s misconduct was in breach of workplace conduct policies, and also created a psychosocial risk to his manager and to other employees, and therefore amounted to a valid reason for dismissal.
The employee was employed as a Customer Engagement Specialist with the Commonwealth Bank of Australia (the Employer).
Between November and December 2023, the employee sent his manager roughly fifty messages which the FWC characterised as disrespectful and indicated a clear disdain for his manager’s ability, his desire for her to lose her job, and even became threatening. Most of the messages were sent during out of work hours in the early hours of the morning or late in the evening.
According to the employee, the reason for sending these messages was because he was unhappy with the support that his manager provided him. The messages cited several instances where he alleged that his manager was deliberately working against him.
In addition to this, following an unsuccessful interview for an internal role in December 2023, the employee sent a series of emails to senior employees of the Employer in which he questioned the integrity of the interviewer, spoke ill of other candidates, and also of his manager.
In January 2024, the employee made a formal complaint against the manager. In the complaint he suggested that the manager should be fired or demoted and that it would be an “act of compassion” to “put her out of her misery” because she was “clearly out of her league”. The text messages came to light during the course of the Employer’s investigation into the employee’s complaint.
The employee was subsequently issued with a letter detailing allegations of bullying and serious misconduct relating to the messages sent to his manager and the emails he had sent to other senior employees. His employment was ultimately terminated in March 2024.
Before the FWC, the employee claimed that his dismissal was unfair because his messages were misinterpreted, and also because they occurred outside of working hours.
The FWC disagreed with the employee’s submissions that the messages related to out-of-hours conduct. The FWC found that the Employer had in place policies relating to employee conduct and that those policies made it clear that the Employer’s rules around conduct applied at all times when an employee was interacting with other employees.
The FWC was satisfied that the conduct occurred because of the work relationship between the employee and the manager, and the subject matter of the messages would likely to give rise to a psychosocial risk in the workplace.
Turning to whether the messages fell within the meaning of “unacceptable workplace conduct”, the FWC stated that it was clear that the messages were deliberate and personally targeted towards the employee’s manager. The content, frequency and timing of the messages were also intended to cause harm and “made her feel threatened for doing her job”. The FWC went further to say that towards the end of his employment, part of the employee’s motivation was for his manager to lose her job.
The FWC noted that the Employer had an obligation to protect its interests and protect other employees, including employees higher in the workplace structure, from the adverse effects of an employee’s misconduct. In this regard, the employee repeatedly sought to “minimise his conduct by repeatedly belittling and then blaming [the manager] for decisions of the [employer] that did not go his way”.
The FWC concluded that this conduct was likely to cause a loss of productivity, seriously damage the relationship between the Employer and the employee, and also expose the Employer to liability for psychosocial risks if the employee and manager continued to work in close proximity to one another.
The FWC found that the messages and emails formed a pattern which indicated the employee would no longer cooperate with the Employer’s reasonable and lawful direction to comply with its policies and that it was clear that the employee could not treat his manager with respect or courtesy. It was noted that the employee did not meaningfully acknowledge his conduct or show genuine remorse towards the manager and agreed with the Employer that his conduct was likely to be repeated if he remained employed.
The FWC was satisfied that there was a valid reason for the employee’s dismissal and that the dismissal was not unfair. Therefore, it dismissed the employee’s application.
This decision provides helpful support to employers when considering disciplinary action against employees for creating psychosocial risks to others in the workplace – including placing the psychosocial health and safety of their managers at risk. Where such misconduct is likely to cause serious damage to workplace relationships, it may form a valid reason for dismissal.
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