Fair Work Commission rejects employee’s claims termination linked to lodging complaints

Fair Work Commission rejects employee's claims termination linked to lodging complaints

Fair Work Commission rejects employee’s claims termination linked to lodging complaints

 

The Fair Work Commission has agreed an employee was legitimately terminated following complaints his employer received alleging harassment and bullying of co-workers and not due to various concerns the employee raised during his employment.

The male employee, ‘JC’, was employed by Vivesco Pty Ltd (company), a landscape and gardening business, from October 2022 until his termination in February 2024.

He was dismissed for breaching the company’s policy prohibiting workplace harassment and bullying.

In submissions before Deputy President Alan Colman, JC claimed that he was terminated after complaining for several months about rostering arrangements, the type of jobs he was assigned, bullying and harassment, and the undersupply of labour at the company’s larger sites.

In his mind, the company was engaging in a coercive and manipulative strategy in an attempt to make him resign.

In contrast, the company’s Managing Director claimed that he became concerned with JC’s performance in mid-December 2023 after receiving numerous complaints from co-workers about JC behaving aggressively and erratically. Several workers indicated they could not work with him and requested not to be rostered with him.

Workers raised the following concerns about JC:

      • an employee claimed JC had sworn at him, called him a liar and a ‘fat exploiter of foreigners’;
      • he displayed aggression towards them;
      • he sent a text message showing a picture of an aeroplane, stating he was one of Australia’s wealthiest men;
      • a worker stated that while he was filling fuel cans, JC stood over him, behaved aggressively towards him and told him he could see through people and should not be underestimated.

The Managing Director said he was concerned about the impact JC was having on other workers and his obligation to maintain a safe working environment. Although he did roster other staff to avoid conflicts with co-workers, this was not sustainable in the long term.

In his decision to uphold the termination, the Deputy President highlighted the incident in which JC swore at a co-worker and called him a liar. He found the witness to be very credible and chose his version of the incident as opposed to JC’s denial.

As the Deputy President noted, “I cannot be certain of what occurred, but certainty is not required. I am comfortably satisfied that the allegation is substantiated and that the witness’ evidence of what occurred on that day is correct”.

The Deputy President also highlighted that JC had contravened various examples of the company’s workplace bullying policy, including insults to co-workers, yelling, offensive language, and derogatory, demeaning or inappropriate comments about a person’s appearance.

The application was dismissed.

JC v Vivesco Pty Ltd [2024] FWC 1220 (9 May 2024)

For queries about employee performance, bullying and harassment, rostering workers, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 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.

Ref: 434.0524

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