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10 Common Mistakes With HR Investigations

‘Go ahead and sack me’ threat backfires before FWC

'Go ahead and sack me' threat backfires before FWC

For an employer, having two employees engaged in ‘workplace warfare’ is a nightmarish set of circumstances.

The employer concerned would need to adopt a careful and prudent strategy for dealing with the disputants.

It can be a precarious situation because is not uncommon for an aggrieved disputant to redirect their ire to the employer if things do not go their way.

A recent unfair dismissal appeal decision of the Full Bench of the Fair Work Commission[1] serves as a useful example of the circumstances when a sacking of a workplace disputant will be considered well and truly justified.

Background

The employee in question (Ms Lumley) had worked in an office support role for her employer.

In the setting of a small office environment, workplace conflict arose between Ms Lumley and a co-worker (Ms Cook).

Workplace bullying complaint

In July 2013, Ms Lumley made a complaint to her employer alleging workplace bullying by Ms Cook.

An HR investigation by the line manager of both employees (Mr Jamieson) found the workplace bullying complaint to be unsubstantiated.

Attempts to restore peace

Following the finalisation of the workplace bullying investigation, Mr Jamieson conducted a mediation between the two employees with a view to resolving the conflict between them.

In an attempt to avoid any further workplace conflict, Mr Jamieson issued specific work procedures pertaining to Ms Lumley and Ms Cook.

One of such procedure was that in the event of either employee encountering difficulty with the other, the particular issue was to be raised with Mr Jamieson rather than being addressed directly with the other employee.

To emphasise the gravity of the situation to the workplace disputants, both were issued with a written warning that any failure to comply with the procedures could lead to disciplinary action – including dismissal.

The conflict continues

Despite the clearly laid out procedure, the conflict between the two employees did not cease.

Following further issues between them, Ms Lumley was given a verbal further warning in August 2013.

In September 2013, after another workplace altercation between the two employees, Ms Lumley was issued with a final written warning.

‘Go ahead and sack me!’

In February 2014 there was a further workplace altercation between the two employees.

The manager (Mr Jamieson) met with Ms Lumley about the incident.

Although, at the point of the meeting’s commencement, Mr Jamieson had no intention of taking dismissal action against Ms Lumley, that position changed during the meeting.

When the relevant issues were raised by the manager with Ms Lumley, her responses included:

Well John what are you going to do about it, you should just go ahead and sack me then”

“Go ahead then sack me now, just sack me now

“Just do it, sack me”.

In perhaps an example of ‘be careful what you wish for’ – that is exactly what happened.

Ms Lumley was dismissed with immediate effect.

Unfair dismissal claim

Ms Lumley subsequently brought an unfair dismissal claim with the Fair Work Commission[2].

Unfortunately for Ms Lumley, her case did not fare well before the FWC which considered her dismissal to have been fair.

The FWC made the following observations about the decision to dismiss Ms Lumley:

… [I]t was open to the employer to … to terminate Ms Lumley’s employment because of the view that … the interpersonal situation was not improving as [Mr Jamieson] had hoped and which his efforts were directed to achieving, and appeared to be likely to get worse.

He was also particularly concerned that there appeared to be problems when he was absent from the office and the duty of his role required him to be absent from the office on a regular basis.

The FWC dismissed Ms Lumley’s claim however, Ms Lumley then lodged an appeal application.

The appeal outcome

The FWC Full Bench commented that Ms Lumley (in bringing her appeal) was misconceived about the way her unfair dismissal claim had been decided.

It observed that the (real) valid reason for Ms Lumley’s dismissal was not based on any assessment of blameworthiness related to her dispute with Ms Cook.

Rather, the valid reason for dismissal was based on:

 … the existence of an interpersonal conflict in a small workplace which had reached the point where it had become incapable of any resolution and was affecting the performance of work and [the employer’s] relationships with its customers.

In particular, the FWC Full Bench had the following to say.

What caused the dismissal was Mr Jamieson’s realisation … that the conflict between [the employees] not only remained unresolved but was likely to worsen and cause continuing problems in the workplace.

[Mr Jamieson] was brought to this realisation by Ms Lumley goading him to dismiss her.”

… [T]he continuance of the conflict … left [Mr Jamieson] in an impossible position, irrespective of who was at fault.

The dismissal of Ms Lumley was a valid response to that situation.

The fact that the situation might equally have been resolved by the dismissal of Ms Cook could not by itself render Ms Lumley’s dismissal unfair.”

The FWC Full Bench subsequently refused Ms Lumley’s appeal application.

Lessons for employers

The profiled unfair dismissal case is a useful example of the FWC’s approach to examining the circumstances of a warring employee’s sacking.

Rather than delving into the dispute history of the warring employees involved, the FWC instead focused on the intractability of the dispute and its impact on the employer’s business.

Certainly the framework adopted by the employer to attempt to resolve the dispute would have held it in good stead with the FWC.

In a situation where a workplace dispute is incapable of resolution, is harming the employer’s customer relations and is likely to worsen, the profiled case shows that a dismissal can be a valid response in the circumstances.

In the end, the sacked employee had left the employer with no other option for the decisive action necessary to bring her workplace dispute to an end.

[1] Jacqueline Lumley v Bremick Pty Ltd Australia T/A Bremick Fasteners [2014] FWCFB 8278 (5 December 2014)
[2] Ms Jacqueline Lumley v Bremick Pty Ltd Australia T/A Bremick Fasteners PR553108 (14 July 2014)


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