Employer insists worker was terminated over bullying allegations
The Fair Work Commission (FWC) recently dealt with a case involving the dismissal of a worker from a landscaping and gardening business.
The worker, who had been employed by the company from October 2022 until February 2024, claimed that his dismissal was unfair, as he was not given an opportunity to respond to the allegations of workplace harassment and bullying made against him.
The employer argued that the worker was dismissed due to his mistreatment of co-workers, which was in violation of the company's policies.
This case highlighted the importance of following proper procedures when dismissing an employee and the potential consequences of failing to do so. It also emphasised the need for employers to maintain a safe and healthy work environment for all employees, free from harassment and bullying.
Background and context
According to records, the worker had raised concerns about unfair rostering and work practices in the months leading up to his dismissal.
He believed that he was consistently directed to work at the company's largest and most physically demanding sites, often with only one other employee who might have been a woman, an older person, or someone with a physical limitation.
The worker also complained about having to use poor equipment, such as an old ute with no air-conditioning.
In December 2023, the worker sent an email to the managing director about the unfair rostering arrangements, but the managing director disagreed with the worker's concerns.
Several weeks later, the worker expressed his desire for changes, but he received no reply. On 1 February 2024, the worker met with the managing director to discuss the problems he was experiencing at work, but he felt that the managing director provided no feedback and instead resorted to accusations, passive-aggressiveness, and 'gaslighting'.
The worker's arguments
The worker believed that his dismissal was unfair and that he was terminated simply for expressing his concerns about his working arrangements.
He denied mistreating any co-workers or engaging in bullying or harassment. The worker also alleged that he was subjected to racial abuse by another employee, but when he reported this to management, the matter was left unresolved.
On 7 February 2024, the worker informed the managing director that he needed some time off for his mental health.
Two days later, he received a termination letter referring to allegations of bullying and harassment. The worker was shocked, as no such matters had been raised with him previously, and he had not been asked if the allegations against him were true.
The employer’s position and bullying allegations
The employer contended that the worker was fairly dismissed due to his mistreatment of co-workers, which was in violation of the company's policies.
The managing director had received numerous complaints from employees about the worker's aggressive and erratic behaviour, with many requesting not to be rostered to work with him.
The first complaint the managing director received was from an employee who claimed that the worker had sworn at him, called him a liar, and a 'fat exploiter of foreigners'.
The managing director discussed the matter with the employee, and it was decided that the employee would not be rostered to work with the worker. However, the managing director admitted that he should have raised the matter with the worker but did not do so.
Other employees then contacted the managing director, stating that they did not want to work with the worker because he was aggressive.
One employee reported receiving a bizarre message from the worker, which showed a picture of an aeroplane with text stating that the worker was one of Australia's wealthiest men and was flying to his billion-dollar resort in Port Douglas.
In early February 2024, another incident was reported in which the worker had behaved aggressively towards an employee, telling him that there were narcissists at the workplace, including the employee himself.
The managing director sought the assistance of an external human resources advisor, who determined that the worker's conduct was unacceptable and posed a health and safety risk to other workers. Based on this advice, the decision was made to terminate the worker's employment.
The FWC’s findings
The FWC found that there were valid reasons for the worker's dismissal, particularly his serious misconduct towards a co-worker on 19 December 2023.
The Commission accepted the evidence of the co-worker, who claimed that the worker had shouted at him, used offensive language, and made derogatory comments about his appearance.
"I accept [the co-worker's] evidence that [the worker] was angry, and that he shouted at him. I find that [the worker's] anger led him to direct abusive language towards [the co-worker], and that he yelled out to [the co-worker] that he was a 'fat exploiter of foreigners'. I reject [the worker's] submission that it would not make sense for him to say this because [the co-worker] was not his boss."
The Commission also found that the worker's conduct towards other employees constituted inappropriate behaviour that was contrary to the company's policies.
The FWC noted that the worker's interaction with the co-worker on 19 December 2023 involved serious misconduct that warranted summary dismissal.
"Irrespective of these policies, it is entirely unacceptable for a person to 'fat shame' a coworker. There is no justification for it. [The co-worker] was also called a liar, without any basis. He was shouted at, and sworn at, in a threatening way. This aggressive outburst was clearly a valid reason for dismissal."
Although the worker should have been given an opportunity to respond to the allegations, the FWC determined that this procedural deficiency was outweighed by the valid reasons for dismissal.
The Commission noted that the managing director should have raised the employee allegations and his own concerns about the worker's conduct directly with him and asked for his side of the story.
"[The employer] should have raised the employee allegations and his own concerns about [the worker's] conduct directly with him and asked [the worker] for his side of the story. However, in my overall assessment, these procedural deficiencies are outweighed by the valid reasons, and in particular the gravity of [the worker's] misconduct on 19 December 2023."
The FWC dismissed the worker's application, concluding that had he not been dismissed on the date in question, he would have been dismissed a short time later due to ongoing concerns about the effect of his behaviour on other employees.
Although the employer in this case did not follow the ideal procedure for dismissal, the FWC found that the worker's serious misconduct and the impact of his misconduct on other employees constituted valid reasons for his termination.
