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Sacking of inappropriate group emailer lawful after legitimate workplace investigation, says Fair Work Commission

The summary dismissal of an inappropriate group emailer and serial complainant by a regional water board has been ruled lawful by the Fair Work Commission.

The employee had lodged complaints and sent group emails accusing managers of bullying and appointing a friend to a job he had unsuccessfully sought.

 

After the senior land officer unsuccessfully applied for a capital works coordinator position, his complaint to a local MP was referred to Queensland's Ombudsman and the Crime and Corruption Commission (CCC) as suspected official misconduct and then back to the water board.

Around the time the water board engaged a law firm to investigate the issues, in November 2014, the land officer used the company website to apply for documents related to its recruitment and selection process.

However, the water board’s operations manager told him that he had used the wrong form.

The land officer copied his response to the "general email address" (the "public" email address on its website's "contact us" page), accusing the operations manager of using a "bully boy tactic", demanding an apology and for the company to admit that it was “100% (the company’s) fault".

He also referred to the investigation.

The employer responded with a letter directing him to treat discussions with the operations manager about the investigation as strictly confidential.

It also warned him that use of general emails in this context was "inappropriate and contrary to the code of conduct" and argued that it repeatedly warned the land officer that failing to comply would result in disciplinary proceedings and twice offered him confidential counselling.

However, early in 2015 the land officer contacted GAWB's chief executive officer and management team, again copying-in to the general email address.

He threatened to sue the company and two managers for allegedly appointing a friend of theirs and said he would claim damages of up to $500,000, which was the difference between his current pay and what he would have received over 20 years if his application had been successful.

The water board suspended the land officer on full pay pending an investigation into whether he had ignored a confidentiality direction and the warning against using the general email address to make adverse comments about his colleagues.

The employer said his correspondence was "intended to be intimidating, threatening [and was] unacceptable behaviour, in breach of (the) code of conduct".

A month later he was asked to show cause why he should not be dismissed and given three weeks to respond.

However, the employer then issued a new show-cause request providing an additional month to respond, after he sent a further six page "letter of demand" to four managers.

It alleged "torts of conspiracy, misfeasance in public office and negligence" and proposed a settlement of around $700,000.

One week after a show-cause meeting, he was summarily dismissed with a month's pay in lieu of notice and given a formal letter of dismissal that outlined the findings of the investigation.

The letter also rejected his accusations that the show-cause process was initiated in response to his complaints, while the CCC investigation found none of his allegations against the water board constituted official misconduct.

The land officer told the court he felt humiliated, bullied and victimised since raising his complaint and accused the water board of dismissing him as a reprisal and not because he breached directions.

The FWC found the company’s response an "appropriate one on the part of an employer, requiring an employee to ensure compliance with the code of conduct and ensuring confidentiality".
It further found "no basis" to conclude his suspension and dismissal was the result of his complaint and, therefore, given his deliberate breaches of reasonable directions and the code of conduct, the company had a valid reason to dismiss him.

The Commissioner also found the company gave the land officer reasonable time to respond to the allegations and rejected his claim that his manager's use of a prepared script during the dismissal meeting demonstrated a "bias or pre-conceived conclusion".

Noting that the company had already provided him with a detailed notice as well as supplementary notice to show cause and allowed adequate response time, she said the final meeting was not part of the show-cause but a "face-to-face communication of the outcome of a deliberative process".

The FWC said dismissal was "proportionate" to his conduct, which was "deliberate, unacceptable and had the potential to cause considerable disruption in the workplace”.

iHR Australia is a leading provider of expert workplace investigations to organisations that are dealing with allegations of inappropriate workplace behaviour. iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. Workplace investigation officer training is also offered by iHR.

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