Dismissal of retail supervisor for acts of insubordination and misconduct upheld

Dismissal of retail supervisor for acts of insubordination and misconduct upheld

The Fair Work Commission has upheld the dismissal of a female supervisor whose conduct deteriorated after discovering a male co-worker had been convicted of historical sexual offences, and her employer did not accept her requests to have him terminated or transferred.

The case involved a part-time Customer Service supervisor who worked for a retail chain in Adelaide. Although part-time, she was a keen employee who worked an average of 35 hours per week, generally four days as a customer service supervisor (front end) and one day as a retail employee in the variety department. On occasions, the supervisor worked alongside a male co-worker (identified only as Person A).

On 3 July 2021, she mentioned to a colleague that she had concerns about working with Person A and thought younger female staff might also feel uncomfortable. She had not witnessed Person A doing anything inappropriate, but she just had an uneasy feeling about him.

The supervisor undertook an internet search which revealed Person A had been convicted of a historic sex offence, for which he had been jailed and subsequently released.

The following day, she informally spoke to store management, who told her they were unaware of the conviction and would seek legal advice.

On 8 July 2021, the supervisor met with her Store Manager and the HR Manager, who informed her that they had received legal advice that no grounds existed to take action against Person A simply because he had a past conviction for a historic sex offence. She was asked to provide names of other staff who also felt uncomfortable but was unable to provide specific details.

Unsatisfied with the response and feeling somewhat helpless, the supervisor emailed the store manager on 10 July 2021, asking what steps could be implemented to distance her from Person A. A temporary solution was introduced so that the supervisor was transferred from front-end duties when Person A was rostered on; however, she became increasingly depressed and emotional at the thought of coming to work.

On 9 August 2021, the supervisor appeared to be in a distraught state, and a meeting was convened with the HR Manager and a male store manager. An offer was made to transfer her to a separate supermarket, but she rejected this as it involved further travel. Shortly after making hostile comments about Person A, she exited the meeting room and then returned and said directly to the HR Manager, “You are not doing a very good job”. The store manager witnessed the comment.

Later that day, it was reported that the supervisor had, on one occasion, referred to the HR Manager as a ‘fucking bitch’ and stormed out of the store later that day during her shift. She then took five days of personal leave.

On 23 August 2021, a second meeting was held in an attempt to find a permanent solution to appease the supervisor’s concerns. The offer was made to split the roster across three areas, including online work; however, the supervisor reacted angrily, stating, “online is for monkeys”. She then turned to the Customer Service Manager and said to her, “You are a shit front-end manager, and you do nothing all day”. Understandably, the manager was shocked at being spoken to that way.

A disciplinary meeting was held on 30 August 2021, encompassing both incidents. After initially considering terminating the supervisor, she was issued with a first and final warning, largely due to the recognition of the stress the supervisor had been under.

The next four weeks were uneventful until 27 September 2021, when the supervisor voiced her frustration about a delayed lunch break and abused a co-worker in front of customers. Following a show cause meeting on 29 September 2021, the supervisor was dismissed.

In his determination, Deputy President Peter Anderson accepted the submission that the comments of the supervisor towards her managers were insubordinate and constituted misconduct. With regard to the initial trigger, he noted,

“While Ms (S) was entitled to disagree (even unreasonably) with the manner in which her employer handled the issues raised, her views about Person A and her views about the changed roster did not vitiate her contractual obligations. These included the duty to act professionally, courteously and respectfully. I have found separate instances of misconduct over a two-month period where Ms (S) acted in breach of those duties”.

The application for reinstatement was dismissed.

TS v The Employer (U2021/9412) 4 March 2022

For questions about misconduct, privacy issues, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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