Even `difficult workers’ are entitled to natural justice

Even `difficult workers’ are entitled to natural justice.png

Even ‘difficult workers’ are entitled to natural justice

A recent case involving the dismissal of a shopfitter again highlights the need for employers to ensure that natural justice and procedural fairness are afforded to all employees when faced with allegations of misconduct or misbehaviour in the workplace.

The employee, who had worked for the company for over five years, had a history of difficult interactions with supervisors and co-workers, often involving insults and profanities. The events included being removed from working on-site to off-site premises in October 2019 after verbally clashing with a supervisor. However, he was never formally warned for his behaviour.

The key incident arose on 27 February 2020 when he drove his private vehicle to work and parked it inside the factory premises, despite being told previously with other workers that this was forbidden. He decided to do this because he had brought a motorcycle to work strapped to his utility and was concerned it was unsafe to park it in the street. He was told to remove the vehicle by the Site/Factory Foreman, and after failing to convince him,  told them he had decided to go home. While leaving the factory, he encountered a representative of the owner of the factory complex who gave him tacit approval to park his vehicle on the premises.

He returned and continued his shift but at 2 pm approached the Site/Factory Foreman and advised him he was finishing early and would leave the site. He was told to ring the Operations Manager, and during the conversation, the issue of the earlier on-site parking arose which “degenerated into an unpleasant exchange involving aggressive and abusive language”. The conversation ceased with the employee calling the manager an expletive and hanging up on him. Thinking that the phone disruption might have been due to a technical fault, the manager rang him back but was told he had deliberately hung up, he was abused again and hung up on for a second time

Immediately, the Operations Manager contacted the Managing Director, who believing the conduct to be unacceptable, deemed it serious misconduct and instructed that a termination letter be drafted and forwarded to the employee via email that afternoon.

The employee did not check his emails and arrived ready for work the following day. He was then verbally advised of his dismissal and the existence of the email. After a short discussion, he collected his tools and left the premises.

In his determination, primarily focusing on the conduct of the employee during the two phonecalls including deliberately hanging up, Commissioner Cambridge determined that the employee had engaged in serious misconduct thereby providing a valid reason for his dismissal.

However, the approach taken by the employer in enacting the termination was seriously flawed, particularly by failing to give the employee any opportunity to respond to the allegations or explain his behaviour towards the Operations Manager. As Commissioner Cambridge commented, “Even argumentative and difficult people are entitled to natural justice. There was no justification for not hearing from the applicant before the decision to dismiss was made. Further, the communication of advice of dismissal via email was entirely inappropriate and unnecessarily harsh”.

Determining that proper process would have quickly resulted in the employee being dismissed for reasons that amounted to serious misconduct, the employee was granted an amount equal to two weeks wages.

Karisma Joinery Pty Ltd [2020] FWC 5051 (25 September 2020)

For queries about dealings with allegations of serious misconduct or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 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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