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One random comment spirals into HR nightmare

By Rebecca Macdougall on August 9th, 2019
  1. Termination of Employment
  2. Dismissal

It all started on the Ghan train from Adelaide to Darwin.

An elderly passenger told a hospitality worker that another passenger – who was drunk at the time – had said the worker made a sexual comment about the drunken passenger’s wife.

This distressed the employee, who then explained to the train manager that he had been wrongly accused by this passenger. He asked for the matter to be investigated so he could clear his name.

However, the manager said there was no need to. The passenger was drunk and the complaint was not credible, so there was no need to look into the “non-issue” any further.

But for the employee, it was far from a non-issue and that night he couldn’t sleep.

The following morning he felt unwell. He said his illness was exacerbated by damp carpet in his cabin caused by a leaky air-conditioning vent and being away from his newborn baby. He took the day off sick and remained in his cabin until the train arrived at Alice Springs the following day.

In the meantime, he asked his colleague who was conducting a walking tour at the stopover in Alice Springs if he could swap shifts with him, so he could get out in the fresh air. The colleague and the train manager accepted, however the restaurant manager (who was the employee’s immediate manager) later intervened and denied him permission to swap his shift.

This angered the employee. When he disembarked from the train he contacted the company’s HR manager in Adelaide and told her that he had been “bullied and victimised”.

Agitated, he refused to reboard the train and demanded a flight back to Adelaide at the employer’s expense.

The HR manager refused. The general manager in Adelaide then got involved and after a “plethora” of texts and calls agreed that the company would arrange accommodation for him to stay over in Alice Springs.

Initially, the employee was happy with this, until he discovered the accommodation wasn’t satisfactory.

He then telephoned the general manager and shouted “You will pay for what you have done, you better sleep with one eye open, you are terrible at your job. This is the end to you and the company, everyone at the cocaine tower will come down when they find out what has happened.”

The employee proceeded to bombard her with a series of texts and threatening calls where he yelled “f— off”, “[you are] a f—ing s— manager”, “[the restaurant manager] will pay for what she has done” and “you had better watch out”.

The employee’s threatening behaviour then continued when he returned to Adelaide and spoke with the general manager and HR manager in person. He was subsequently dismissed.

Frustration no excuse for erratic behaviour

In the Fair Work Commission unfair dismissal hearing, Deputy President Peter Anderson found that the employee gave his evidence in a “polite but intense” manner.

“He exhibited, some four months after dismissal, a continuing (and in some respects, understandable) anger and frustration at the employer,” Deputy President Anderson said.

“There is some evidence to mitigate the abuse and threats. [The employee] said he subsequently apologised (in the platform conversation) to [the general manager] for swearing at her … though [the general manager] did not recall him doing so. I accept his evidence that he did so.

“However, [the employee] made no apology to [the HR manager] or [the general manager] for the general threats and abuse he levelled at them.

“I take into account that [the employee] was intensely frustrated (“emotionally distraught” in his words) and felt that his concerns needed to be better understood.

“I also take into account that at points in time (speaking to the train manager and speaking to [the HR manager] once she agreed to pay for his accommodation) he became calm.

“However, these were not isolated instances of abuse and threats. There were many such moments of abuse.

“They were not the product of a singular rush of blood. They were the product of erratic behaviour over a prolonged period and a lashing out at the managers because [the employee] was not getting his way.

“[The employee] was recklessly indifferent to the manner in which he communicated with [the HR manager] and [the general manager].”

Valid reasons for dismissal

“I have found that there were valid reasons for dismissal based on serious breaches of duty and in particular [the employee’s] refusal to reboard the Ghan at Alice Springs as directed and the offensive and threatening language he used towards managers and towards the company,” Deputy President Anderson said.

“Collectively the serious misconduct established a well-founded loss by the employer of trust and confidence in [the employee’s] capacity to work as directed and to do so in a respectful and not insubordinate manner.

“Reasonable criticism can be levelled at the fact that the employer’s policy concerning emergency flights home for employees was not in writing and not able to be clearly understood in advance by [the employee] or other employees.

“Reasonable criticism can also be made (and I do so) that the employer did not act promptly on the evening of Friday 15 February or over the following weekend or on Monday 18 February to correct [the employee’s] misunderstanding that he had been fired on the Keswick platform.

“However, in the context of the abusive communication and threats made on the platform and [the HR manager] feeling unsafe in light of those threats this delay was understandable, if not excusable.

“In any event, having regard to the overall investigation and consideration of the matter conducted by the employer, including the opportunity given to [the employee] to respond (which he refused), [the employee] was not denied a fair go all round.

“The procedures applied were generally fair and the decision to dismiss was not predetermined.

“As the dismissal was not unfair, I am not required to consider issues of remedy,” Deputy President Anderson said.

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