Termination of serial misbehaving employee upheld

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Termination of serial misbehaving employee upheld

A council waste operator with an extensive disciplinary history leading to his termination has had his unfair dismissal claim rejected by the FWC. In the Commission’s view, the employer showed support for the employee over many years despite him setting a “destructive path for himself” including the intimidation of a Team Leader.

On 30 January 2020, the employee was stood down by the Banyule City Council (the Council) following an incident in which it was alleged he had intimidated a Cleansing Team Leader. On 10 February 2020, he was issued with a letter asking him to respond to a series of matters in relation to his behaviour in the workplace. The allegations were:

  • Presenting for work in inappropriate footwear. He initially refused to change until told there could be ongoing repercussions for disobeying the request.

  • He had been seen removing bicycle parts from a Council vehicle and then placing in his car. He was requested to provide evidence that he had purchased the parts but refused to do so.

  • He had approached an acting supervisor and behaved in a “highly agitated, aggressive and antagonistic, outwardly defiant and particularly demeaning manner.”.

  • He had intentionally parked his Council vehicle, for four minutes, in view of the Cleansing Team Leader and began following the vehicle in an intimidating manner. He repeatedly refused requests from his passenger to return to the depot.

  • On one afternoon, he sent 15 text messages and made nine telephone calls to the Senior People and Culture Business partner.

All of the above allegations were substantiated, leading to his termination on 2 March 2020. The allegations were also substantiated based on the material reviewed by FWC Commissioner Bisset.

In addition to these allegations, it was noted that he had previously received formal warnings on 21 February 2019 and 30 October 2019, a verbal warning on 22 August 2017, and formal counselling on 15 March 2018 and 18 July 2018. An earlier formal warning had been given to the employee on 2 June 2014. In addition, there had been multiple informal discussions held with him about his behaviour in the workplace.

As Commissioner Bisset commented, “I accept, that there have been issues with the Applicant’s conduct and performance during the course of his employment and that he has been given opportunities to improve.”  In the Commissioner’s view, the Council had been more than tolerable in dealing with his behaviour over many years until it reached a breaking point “the dismissal of the Applicant was not harsh, unjust or unreasonable. The Applicant set a destructive path for himself. I am satisfied that he has been shown support by the Council over many years. He has, however … failed to repay this support.”

The operator’s application was dismissed.

K.S. v Banyule City Council [2020] FWC 4722 (15 September 2020)

For queries about dealing with employee misbehaviour 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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