Repeated misconduct justifies termination

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Repeated misconduct justifies termination

Despite the absence of a single episode justifying serious misconduct, the FWC has upheld the dismissal of an employee who had been issued with at least six reprimands in the last two years of his employment. As commented by DP Boyce in his decision, “why should an employer have to continue the employment of an employee who intentionally and repeatedly engages in misconduct, making their business operation more difficult to run, and the workplace more uncomfortable for other staff to work at?”.

The case involved a bus driver who operated from the employer’s depot in South Western Sydney, and at the time of dismissal, had over five years’ service. The employee’s major objection to his dismissal was he believed that he had not engaged in any “major” displays of performance or conduct. However, he did agree that he had been subject to several “minor” incidents in the prior two years (several of which he argued were not justified).

The evidence led by his employer was that he was ultimately dismissed due to a swearing incident, that combined with the previous five incidents, warranted gross misconduct justifying his summary dismissal. During the termination process, he was provided with a letter detailing all of the incidents which can be summarised as follows:

  • `Cigarette Incident’ – In June 2017, he was given a `final written warning’ after it was determined he was smoking near a bus, in breach of company policy. He claimed during the hearing that he had actually been some distance from the bus;

  • `Non-compliance Incident’ – In August 2017, he was given a `formal written warning’ after he wore a plain white-collared shirt while performing his duties, despite being required to wear a company uniform. After being directed to return to the depot, he continued to complete some of his bus route;

  • `Conflict Incident’ – In January 2018, he was given a `warning’ after sending inappropriate text messages to a co-worker following a dinner with colleagues outside of work hours;

  • `Defacing Vest Incident’ – In December 2018, he was given a `formal re-issued written warning’ after drawing a picture of a dartboard with a number of knives hanging out of it  on the back of a company-supplied fluorescent vest; and

  • `Near Miss Incident’ – In June 2019, he was given a `final written warning’ regarding an incident where he was almost hit by a bus leaving the depot. When interviewed by his employer, he acknowledged that he intentionally walked in front of the bus “simply to antagonise (the driver)”. The driver was the same co-worker with whom he had the previous altercation.

The final incident, referred to as the `Swearing Incident’, occurred in November 2019 following the employee being made aware of a complaint made against him by a member of the public. Following the complaint, the employee was directed to complete an incident report which involved him simply writing the words “fuck off I know nothing”. A co-worker stated that she had never received a similar response from any bus driver at the depot.

In the employer’s view, this incident combined with the employee’s history amounted to gross misconduct and destroyed any “trust and confidence” in him to properly and professionally engage at the workplace. Consequently, he was stood down for ten days, and then a decision was made to terminate him on 9 December 2019.

Although DP Boyce discounted two of the incidents, he held the view that the employer’s decision to terminate was valid. As he commented, “each of those incidents of misconduct alone may not give rise to a valid reason to dismiss the Applicant. However, collectively, the Applicant repeatedly demonstrated that he was resistant to following the Respondent’s directions and expectations. The Applicant flouted workplace policies, soured work relationships, and made the work of his colleagues all the more difficult to perform. He knew he was not meant to engage in such conduct, but did so anyway.”

Ingleburn Bus Services Pty Ltd t/a Interline Bus Services (U2019/14460) 28 August 2020

For queries about discipline 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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