Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.
In claims of unfair dismissal relating to unacceptable conduct and behaviour, the Fair Work Commission (FWC) will consider all of these factors in determining whether the dismissal was fair. The FWC was tasked with this in its recent decision in Meredith v Chad Group Australia Pty Ltd [2020] FWC 1467.
The employer in this matter was a family-owned and operated manufacturer and supplier of building products. It summarily dismissed a truck driver for yelling offensively at a supervisor, continually ignoring requests to leave the workplace and responding aggressively towards a sales employee. Prior to the dismissal, the employee had a familiar relationship with the directors (the family who ran the business).
Evidence was provided to the FWC by both former and current employees, which supported the position that the employee was known for being a difficult person to deal with and that he made others in the workplace feel uncomfortable.
One particular former employee stated that the employee often called him “arrogant, smarta***, dumb a***, a c***”, and that he had threatened to “give him the Ivan Milat treatment”. The former employee stated that this behaviour had become normal in the workplace and that over time he began to feel unsafe around the employee, even after he had complained about the conduct and the employee had received a warning. The former employee stated that he eventually sought alternative employment because he felt the employer’s management could not protect him if the employee decided to physically harm him.
There was also evidence before the FWC that suggested that the employee would not often communicate his whereabouts when doing deliveries, and refused to take lunch breaks until after he had returned to the warehouse even though he was encouraged to take them between deliveries.
On the day of the dismissal, the employee had returned to the warehouse following a series of deliveries and was immediately asked by a sales employee about the whereabouts of some arches. The employee did not have the paperwork and accordingly did not know where the arches were.
The employee then proceeded to take his lunch break but was then approached by his supervisor and questioned about the arches and his performance generally. The supervisor took exception to the employee’s “blasé” response and yelled at him to “go home and think about your job” and followed him around the warehouse telling him to “get out” on a number of occasions.
As the employee was leaving, he yelled to the sales employee to “F*** off. Go f*** yourself.” The supervisor then told the employee to “Get out of here. Go home.” The employee then yelled at the supervisor “You can go and get f***ed. F*** off. Go f*** yourself”. The supervisor then told the employee that he was “done” and that he could not speak to others in that manner.
The employee did not deny that the conduct occurred. However, he argued that there were circumstances which resulted in him snapping on the day of the dismissal. He stated that he had been subjected to years of bullying and harassment, including swearing, belittling and the use of coarse and aggressive language towards him by his supervisor. He also claimed that his complaints had been ignored.
The FWC examined the employee’s allegations and, whilst satisfied that some of the alleged incidents occurred and that they may have contributed to further aggravating the employee, they were not sufficient to warrant the employee’s conduct on the day of his dismissal.
The FWC stated that the employee “is solely responsible for both his actions and his reactions”, which were unnecessarily abusive and inconsistent with his employment obligations.
However, the FWC found that the employer had failed to afford the employee procedural fairness in effecting the dismissal. In this regard, the employer’s approach to dealing with the employee on the day of the dismissal had been devoid of any fairness, noting that he was not notified of the reason for his dismissal or provided with an opportunity to respond.
For this reason, the FWC found that the dismissal was procedurally unfair and harsh in the circumstances. It determined to issue directions as to remedy at a later date.
The FWC also noted that the dispute in this matter was one that could have been avoided had the employer realised that it had outgrown its family operation and that it needed formal processes in place for dealing with inappropriate workplace behaviour. Instead, the employer failed to set parameters for or take reasonable action to manage the employee’s conduct and generally looked the other way. The FWC noted:
“[The employer]’s complacency when it came to dealing with [the employee]’s outburst or what they describe as a “tolerance of [the employee]’s conduct” resulted not only in a young employee fearing for his safety but enabled the conduct to escalate to circumstances where other employees were subjected to unnecessary and unacceptable abuse.” [at 3]
This decision highlights the importance of drawing the line between acceptable and unacceptable behaviour in the workplace and ensuring that employees are held accountable for behaviour that is inconsistent with those standards. Employers can face significant difficulty in relying on an employee’s unacceptable conduct and behaviour as a reason for dismissal if it is shown that such conduct and behaviour has been tolerated in the past.
This case also demonstrates the potential consequences of failing to properly manage employee conduct and behaviour in the workplace, as in this case, it placed the safety of other employees at serious risk.
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