This is the first article in our new series ‘Silly stuff that gets you sacked’. The series will entail a sometimes light-hearted look at an area where both employers and employees come to grief, with a serious message to employers regarding proper handling of inappropriate employee behaviour.
The first installment covers a case of verbal sledging, offensive stereotyping of employees and abuse of power, where the Fair Work Commission upheld a major bank’s dismissal of a manager, despite finding the bank should have acted sooner to “counsel, advise or retrain” him. Deputy President Anne Gooley ruled that the dismissal had not been unjust because the former Late Stage Loans Collections Team Manager had breached bank policies and codes of conduct “over a number of years”.
The breaches included writing “get stuffed” on an annual leave request and tearing up the application before giving it back to an employee, and failing to treat another employee with respect when he ordered him to stand behind an imaginary line when seeking to talk to the manager at his desk.
Deputy President Gooley also accepted evidence that the manager failed to carry out his responsibilities as team leader when he described two team members as “gay”, made comments about the physical appearance of some female employees and referred to the ethnic heritage of some co-workers. She said that while there was no evidence tendered that these comments “constituted harassment”, the bank’s code of conduct and equal opportunity policies require team leaders to set a positive example. She said the manager “should have been aware that such comments could cause offence and that because of his position employees may be reluctant to convey their concerns to him”.
Deputy President Gooley also heard evidence that the manager massaged female employees but she said there was no evidence that this was unwelcome or undertaken without consent. She said the bank had not made an “unreasonable decision” to dismiss the manager when he “did not acknowledge any inappropriate conduct and resiled from previously admitted conduct”. She said, however, that in determining if the dismissal had been harsh she had to take into account that a major bank “had been aware of the behaviour and taken no action to counsel, advise or retrain” the manager “over a significant period of time” in which he failed to “lead by example”. She said that if the manager had had “any insight into the inappropriate nature of his conduct”, she would have given greater weight to the bank’s failure to intervene early enough “to remedy the inappropriate workplace behaviours”. “However having regard to the range of conduct and the [manager’s] lack of insight, I have decided that the decision to terminate the [manager’s] employment was not harsh,” she said. The manager worked for the bank from October 2006 until July 2012.
Readers should be aware that amendments to the Fair Work Act that passed through Federal Parliament in June strengthen the country’s bullying laws, enabling a worker who has been “bullied” to apply directly to the Fair Work Commission to stop the bullying.
The messages from this case and others like it are that employers need clear, well communicated human resources policies and procedures, including around discrimination and harassment. There should be a structured induction process for all employees. Anyone with people management responsibilities should be properly trained and any leadership and management training should include behavioural components.
As noted by Deputy President Gooley, employees may find it difficult to approach a manager about inappropriate behaviour and may have specific concerns about victimisation, which was also an issue in this case. Organisations may therefore wish to give consideration to appointing trained Contact Officers to act as the first point of contact for employees who are concerned about inappropriate behaviour.
When a complaint is made, workplace investigations must be timely and thoroughly conducted. Employers may choose to conduct an internal workplace investigations with an appropriately trained workplace investigation officer or seek help from an external organisation with the appropriate expertise, such as iHR Australia.
