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Swearing leads to misconduct dismissal

By Andrew Hobbs on October 4th, 2017

THE Fair Work Commission (FWC) has found an aviation training provider was justified in dismissing a worker for misconduct for ‘offensive’ behaviour during a meeting and for sending a company-wide email, despite the company failing to follow its standard processes.

Ansett Aviation Training (AAT) was in the middle of an enterprise bargaining process at the time the meeting took place, with the new agreement being negotiated by the company’s chief operating officer.

During the meeting, which took place on 31 August 2016 and was attended by about 20 of the company’s 29 Melbourne-based employees, the COO said the employee made “an aggressive, vicious and expletive-laden verbal assault” against him.

These included comments such as “The only way you get a promotion around here is to s**k c**k,” and “all you are trying to do is make yourself wealthy by stealing money from our pockets and trying to take things away from us.”

Another worker had also made a threat of physical violence against the company’s Simulator Operations manager during the meeting.

Following the meeting and complaints from other employees, AAT asked its workplace health and safety consultant to investigate the incident.

Following the investigation, and on the suggestion of the COO, the company’s CEO issued the employee with a written “First and Final warning”.

The letter warned the employee that if there was another incident of “offensive, aggressive or disrespectful behaviour” in the workplace, the worker was likely to be dismissed.

Commissioner Nicholas Wilson considered AAT’s policy for the reporting, discussion and investigation of alleged breaches of its code of conduct – noting the process allowed for an informal resolution and discussion involving an independent third party before proceeding to a formal investigation.

Cut to the chase

Commissioner Wilson said that AAT had proceeded straight to the third step without offering an explanation as to why – but added that this did not condemn the decision it made.

He said the employee’s conduct at the meeting had gone above “what may be regarded as capable of toleration from a long-serving employee.”

“[The employee] cannot be seriously suggesting that to say these things in front of such an audience is either acceptable or something which would be allowed to pass without consequences,” he said.

A widespread email

AAT made the decision to dismiss the employee after he sent an email in February to the COO, cc’d to all other company technicians as well as other members of senior management, expressing his anger about being couriered a voting form for the EBA, which he considered a waste of money.

The COO viewed the email, which was presented to the FWC, as publically questioning his integrity, motives and professionalism across the company, calling it “aggressive and disrespectful.”

At this stage, the COO concluded he no longer had any confidence in the employee for future employment and secured the authority to dismiss the employee from the company board in early March.

The subsequent email served to extend this belief, with Commissioner Wilson finding that while the communication of the email itself was not offensive, it was disrespectful because of the combined effect of its content and its wide distribution list.

The FWC found the email breached the conditions of the First and Final warning, adding that the employee had shown ‘no insight and insufficient contrition’ in a later written response to company concerns.

“The email inferred [the COO] did not care about the incurring of unnecessary costs; that he was prepared to circulate for voting an enterprise agreement that downgraded employees’ conditions; that he did not care about employees while caring about external contractors and that he was taking advantage of employees,” Commissioner Wilson said.

Commissioner Wilson said that the employee had allowed his emotions to get the better of him on two occasions, but saw no need to control himself once the prospect of termination was raised.

“AAT … was entitled to form the view not only that [the employee] was not capable of being cautioned about his behaviour, but also that he would give no commitments about his future conduct,” the Commissioner said.

“As a result, the alleged misconduct on the part of [the employee] is found to have occurred… because of this, at the time it dismissed him, AAT had a valid reason to do so.”

Managing allegations of misconduct  

While in this instance Commissioner Wilson was prepared to overlook AAT’s decision not to follow its process to the letter, that is not always the case – and many unfair dismissal cases have been won on that fact alone.

If you are considering terminating an employee for misconduct, you need to be sure you can successfully defend a potential unfair dismissal claim – and first, determine whether you have exhausted all other courses of action.

Before you make any decisions regarding an employee’s future at your company, make sure you read the 78-page Managing Misconduct eBook, written by employment law expert Charles Power of Holding Redlich.

The eBook outlines how to implement procedures to manage employee behaviour, how to investigate allegations of misconduct and discusses how to reduce the legal risks of disciplining or dismissing an employee for misconduct.

Written in clear, plain English, Managing Misconduct provides the guidance you need to effectively respond to inappropriate workplace behaviour. Get your copy now.

 





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