Readers may relate to working with the office “weird beard” at some point in their career. Weirdness may manifest itself as aggression, prickliness or just plain bizarre behaviour. The question is how does one deal with the extreme cases – noting that many employers are reluctant to pursue the sometimes costly unfair dismissal path.
There is a recent case where an employer “got it right” in dealing with such a situation, dismissing the troublemaker and winning a subsequent unfair dismissal claim. The case involved an employee who worked in logistics for a major supermarket group for approximately 7 years.
Throughout the course of his employment, he was constantly managed regarding his low performance and counselled about appropriate workplace behaviours, including:

  • Aggressive and inappropriate behaviour by telling a co-worker “what the f**k are you trying to bash me?” when the worker was looking for missing equipment;
  • Aggressive and inappropriate behaviour toward a different co-worker when he squeezed and pulled the co-worker’s arm;
  • Inappropriate behaviour amounting to sexual harassment to a female co-worker who felt harassed when the employee made a provocative gesture and comment;
  • Extended toilet breaks and staring into space; and
  • An incident where the employee stood at the glass wall of an office, looked at the two co-workers sitting inside the office and started unzipping and zipping the fly on his shorts once or twice. He was counselled at the time for his inappropriate behaviour.

At a disciplinary meeting in March 2014, the employee was terminated for misconduct “against a backdrop of … multiple previous breaches of… (the)… code of conduct and the applicable enterprise agreement”.

Many employers are reluctant to dismiss an employee for fear of an unfair dismissal claim from the sacked employee alleging that the dismissal, was “harsh, unjust or unreasonable” pursuant to the Fair Work Act 2009. In considering whether a termination is harsh, the Fair Work Commission (FWC) will determine if there was:

  • A valid reason for the dismissal
  • Adequate notification of that reason communicated to the employee, and
  • An opportunity for the employee to respond.

In light of the above, the FWC was satisfied that there was a valid reason for the logistics worker’s termination and that it was not harsh, unjust or unreasonable.

The employer was able to produce records of regular meetings that occurred between the employee and his supervisors which “provided adequate direction to (the employee)”. At the disciplinary meeting, the employee had a support person and was presented with witness statements regarding the events that had occurred. He was provided with an opportunity to respond to allegations at the meeting, with the employer ultimately terminating him for his “extended history of unacceptable behaviour and poor performance, despite counselling”.

The FWC found that the procedures adopted by the employer in dismissing the employee were appropriate and that the “level of coaching and management time invested in (the employee) was generous”.

If a worker does not perform to the level expected and engages in inappropriate behaviour in the workplace, employers are entitled to dismiss that worker. However, in order to prove that a dismissal was fair in the circumstances, employers should:

  • Keep records of each instance of poor performance or inappropriate conduct
  • Document each conversation or meeting had with the worker, and
  • Provide the worker with procedural fairness in his or her dismissal.

This case highlights the importance of a clear, detailed, well-communicated policy that is consistently enforced with procedural fairness. The employer had in place a clear policy which was known, understood and deliberately breached and the FWC upheld its right to rely upon that breach as justification for termination.
iHR believes that well-documented and clearly communicated human resources policies and procedures help staff to understand how an organisation ‘works’ and are also tangible evidence that your organisation has taken reasonable steps to minimise business risks and unlawful practice or behaviour.

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