Home - FWC upholds dismissal of badly behaved employee

UpdatesAug 26, 2019

FWC upholds dismissal of badly behaved employee

Consider the following:

All cases of serious misconduct.

Especially when all of these things are wilfully done by one employee.

It’s a wonder how any such person could get a job, let alone keep one.

But the employee who did all these things had worked with his employer for more than six and a half years without one single conduct or performance concern.

In fact, it was after the employee, a salesperson, was promoted to business development manager when his behaviour took a turn for the worse.

Less than three years into the new role, his employer became concerned with his change in behaviour. The employee had become very aggressive, started swearing excessively, drove erratically and would become easily agitated.

When the state manager met with the employee to discuss these concerns, the employee informed him that he had been smoking marijuana since he was a teenager and was recently prescribed with Valium. The employee also acknowledged that his behaviour had been inappropriate

The next day, the state manager met with the employee again to discuss why he had missed a scheduled appointment. The employee told the manager that he was going through a bad breakup with his girlfriend and that this had a significant impact on his behaviour.

In the following months the employee’s conduct continued to deteriorate.

He was continually late for work and would often not undertake his required duties. He also failed to show up for work a number of times and would later text in requests for personal or annual leave on those days.

The employee also engaged in the aforementioned misconduct.

On one occasion he telephoned the state manager and said to him “you’re dead, c—” before hanging up on him.

He had also said to another employee “when I’m bored, I masturbate” and after called him an “f—ing c—head”.

Before the employee was dismissed, the employer issued him with a show cause letter which he failed to respond to.

In the Fair Work Commission (FWC) unfair dismissal hearing, the employee was represented by his father, whose evidence FWC Commissioner Peter Hampton found to be “largely made up of statements about the information provided to him by [the employee]”.

And while the employee’s evidence “was generally given in an open manner”, Commissioner Hampton found it was “unconvincing at times due to the absence of any recall of some key events and inconsistencies as to the detail of matters”.

Nevertheless, he believed that the employee could have been provided with more support from his employer.

“During proceedings, the employee suggested he did not report his medical condition to his employer for fear of damage to his employment prospects,” Commissioner Hampton said.

“I accept that this is a concern genuinely held in the community and that as a society we do not always handle mental health challenges well.

“I would also accept that in some respects, [the employer] could have handled the early signs of the employee’s behavioural changes differently and provided some additional support.

“Further, I note that the [the employer’s] health and safety manual identifies that the causes of what it describes as ‘stress’ can include personal problems and that if an employee’s behaviour indicates that they are ‘not fine’, some further intervention could be required.”

However, Commissioner Hampton noted that the employee had provided his employer with very little information about the cause of his medical condition or its prognosis.

“Given the early indications that the employee’s circumstances were the product of his personal domestic situation, and the refusal to provide access to more detailed information about the medical condition, any criticism of the employer’s approach to this aspect must be muted and seen in that context,” he said.

While considering “all of the relevant mitigating circumstances” before making his decision, Commissioner Hampton said the multiple instances of misconduct were “strong countervailing factors leading to a finding, on balance, that the dismissal was not in all the circumstances, harsh”.

“I am, on balance, not persuaded that the dismissal was harsh, unjust or unreasonable,” he said.


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