The Case

(2018)

Kone Elevators Pty Ltd (Kone) received a formal bullying complaint from Mr Mocanu alleging two managers had bullied him. Kone’s HR team attempted to meet with Mr Mocanu to discuss the complaint, however Mr Mocanu said he was unwell and took medical leave.

While on medical leave, Mr Mocanu indicated he had covert recordings of the two managers that supported his bullying claims. Kone requested that Mr Mocanu provide the recordings, which Mr Mocanu failed to do. Kone made further requests for the recordings both orally and in writing but Mr Mocanu failed to comply. The letters to Mr Mocanu advised him that if he failed to comply with the direction to produce the recordings then his employment would be at risk. Mr Mocanu did not produce the recordings.

Kone summarily dismissed Mr Mocanu for failing to follow its lawful and reasonable direction to produce the covert recordings. Mr Mocanu commenced unfair dismissal proceedings claiming he was on unpaid medical leave at the time of the dismissal and had proposed to attend a meeting with HR on his return.

Kone argued that the decision to terminate Mr Mocanu’s employment was valid given he had failed to comply with its lawful and reasonable direction on four occasions.

The Verdict

The Fair Work Commission (FWC) held the dismissal was not unfair because:

• Kone had waited 5 months after receiving the bullying complaint for further information from Mr Mocanu before proceedings to dismissal;
• Kone had made four requests for Mr Mocanu to provide the covert recordings and he had not complied;
• there had been a period of 3 months between the time the first request was made to provide the covert recordings and Mr Mocanu’s proposed return to work date;
• despite Mr Mocanu being on unpaid medical leave, he was capable of complying with Kone’s request in being able to draft and attach documents to emails, and hence was able to comply with Kone’s directions; and
• despite Mr Mocanu being on unpaid medical leave, his employment contract remained and he was under an obligation to follow Kone’s lawful and reasonable directions and assist with the investigation, including providing the covert recordings.

The Lessons

When an employee makes a complaint, you can issue a lawful and reasonable direction requiring them to participate in the investigation and provide any information and evidence they have to assist.

If the employee repeatedly refuses to comply with the direction, without a reasonable explanation for the non-compliance, then you can impose disciplinary consequences, including in relevant circumstances, dismissal.

When issuing the direction to comply, inform the employee of the potential disciplinary consequences should they refuse or fail to comply, including possible termination of their employment.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.