“Men, not angels”: procedural fairness gaps lead to overturned dismissals, despite two investigations
A global smelting company had a valid reason to sack two workers for a history of bullying behaviour, but its failure to deal with the conduct over a long period and to put specific allegations to them, despite two investigations, meant the dismissals were unfair, the Fair Work Commission has ruled.
The two workers at the company's zinc smelter were among six who accused their team leader of bullying them, but an investigation cleared him of the allegations in July 2013, finding that his conduct amounted to no more than reasonable management action.
In the course of the investigation, the company became aware of allegations against the six workers about their own conduct towards the team leader, and it asked the investigator to obtain further statements from witnesses on the issue.
According to the company, the witness statements contained allegations of "unpleasant, abusive, insulting, critical, undermining, persistent demands, obstructive, mocking, demeaning, belittling [and] humiliating” behaviour.
The second investigator provided his findings to the HR manager, and the company asked the two workers to attend meetings in October 2013 to "show cause" why they should not be dismissed. The company did not give them the 12 witness statements, nor were they told that the HR manager had relied on parts of them in deciding that dismissal was warranted.
The company sacked the workers a week apart in late October. The termination letters for the two workers said they had been dismissed due to "serious misconduct in that you bullied and harassed fellow employees and have shown to have had a number of instances of inappropriate conduct". Both had worked for the company for 18 years.
The two employees were part of a team known within the smelter as "the burn-out crew" because it had the reputation of wearing down its leaders. But the current team leader — who had taken over in December 2012 — conceded that he had never instituted formal disciplinary action against the two workers.
"Looking back in hindsight, I think there was probably a lot of opportunities missed in regards to disciplining people. Progressively disciplining them or I guess formally disciplining them probably would've been a fair thing to do," he told the FWC’s Deputy President.
Previous team leaders also testified that they had not considered the workers' conduct to be serious enough to take action. The Deputy President found that some of the allegations levelled against the workers were not made out, and that one of them had raised workplace concerns in his capacity as a union delegate which were genuinely held.
While some of the behaviour contravened the company’s code of conduct, was of a "bullying nature", and constituted a valid reason for the company to terminate the workers' employment, the workers were not afforded an opportunity to respond to all of the reasons for dismissal.
The Deputy President said management had full knowledge of the workers' behaviour, but had retained their services and done nothing about the conduct.
"I am of the view that (the company), by way of failing to deal with any of the conduct complained of in a contemporaneous manner, failed in its obligation to allow the [workers] an opportunity to understand and change their behaviour, which added to the procedural deficiencies in these dismissals."
The Deputy President said one of the workers had an unblemished employment history, and while the other's was not without incident, the last formal matter was eight years ago and not significant when applying "the standard of men not angels".
"Given their 18 years' service… ages at the time of dismissal [one was 50 years old, the other 57], family dependent responsibilities, the denial of procedural fairness in effecting the dismissals, my findings on the condonation… and lack of managing the behaviour, I am satisfied the conduct did not justify summary dismissal."
The Deputy President found both dismissals harsh, and ordered the workers be reinstated. She asked for further submissions from the parties on lost wages.
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