Discipline or dismiss? Robust process needed says FWC

A case in which two workers were granted reinstatement shows the importance of procedural fairness in managing employees’ performance and conduct. The two workers had originally complained of bullying by their team leader, however an investigation found the allegations made by them to be unfounded and further uncovered accusations against the workers themselves.

After further investigation into the matter, the employer decided to terminate the two workers. Their termination letters stated that they had “bullied and harassed fellow employees”.

During the Fair Work Commission hearing of the case the reputation of the workers’ team was discussed; the team was known as the “burn-out crew” for their treatment of managers. However, it was also discovered that no formal disciplinary action had been taken over any inappropriate behaviour by members of this team.

Furthermore, Deputy President Nicole Wells found that although the workers’ behaviour had breached the company’s code of conduct and was a valid reason to dismiss, there were also allegations which were not founded. The employer’s HR manager had chosen to rely on witness statements taken during the investigation and had chosen to bypass the investigator’s finding that the general allegation of bullying had not been made out.

The Deputy President found that the workers had not been properly notified of all the reasons for termination or provided with an opportunity to respond, as the company had not provided them with the content of the statements which condemned them or adequately disclosed all of the factors contributing to the decision.

Deputy President Wells cautioned, “Procedural fairness is an important consideration and should not be lightly cast aside. Its proper application ensures a robust and just process for those involved.”

Another important warning to employers is that the company was aware of the poor conduct of the workers but had failed to act upon it. The Deputy President stated that this meant the employer had condoned the workers’ behaviour and had “deliberately given up the right to dismiss [them] summarily for that behaviour”.

The dismissals were found to be harsh, not least because the workers had received consistently positive ratings from performance reviews which had led to them believe their conduct was satisfactory.

It is clear that effective management of behaviour is essential in preventing issues from escalating. Comprehensive bullying and harassment training which includes specific information about the organisation’s expectations on behaviour not only educates workers but provides a clear reference point for managers dealing with inappropriate behaviour.