The Fair Work Commission has awarded an Operations Manager $27,787 in compensation following a finding that swearing at another manager was not sufficient to justify his summary dismissal.
- On or around July 2016, the Operations Manager had a heated argument with the national WHS Manager of Precepts Services Pty Limited (‘the employer’). The WHS Manager happened to be the wife of the employer’s Managing Director.
- Prior to the argument, the WHS Manager had a meeting with the Operations Manager’s son – who was employed by the employer as an apprentice electrician – in relation to concerns about his performance.
- The Operations Manager questioned why he was not invited to attend his son’s performance review meeting, and allegedly said to the WHS manager: “Your sneaky husband made that decision, did he?”
- The WHS manager asked what he had meant by “sneaky”. In response, the Operations Manager referred to a previous phone conversation between his (i.e. the Operations Manager’s) wife and the Managing Director in relation to a dispute over their son’s wages. The Operations Manager relayed that during the phone conversation, the managing director allegedly swore at the Operations Manager’s wife, saying to her “f-ck off, you do not have your facts right”, and then hung up on her.
- The Operations Manager then allegedly leant over the table of the WHS manager and asked her twice: “How would you f-cking feel if I said get f-cked to you?”
- In September 2016, the Managing Director directed the Operations Manager to attend a meeting to discuss allegations of misconduct made against him. The Operations Manager attended the meeting, during which he was summarily dismissed.
- According to the Operations Manager, the Managing Director had a habit of swearing at employees including his own wife (the WHS manager), and regularly punched and kicked walls in the office.
Swearing not sufficient to justify summary dismissal
The Fair Work Commission found:
- that despite the “divergent” accounts of the Operation Manager’s last few months, “the evidence indicates that up to that point he had generally been regarded as a valued employee.”
- the decision to summarily dismiss the Operations Manager was based upon his swearing at the WHS Manager;
- the Operations Manager’s conduct in swearing at the WHS Manager was “inappropriate and unacceptable;”
- the pressure from his son’s situation did not excuse the Operations Manager’s actions but did help explain his conduct;
- that in relation to the Operation Manager’s use of “robust language”, “the evidence establishes that the use of robust language in the workplace was not unusual or uncommon, and that it was accepted and tolerated to a large extent, given the example set by the Managing Director;”
- that the Operations Manager had been judged by a different standard compared to other employees of the employer;
- that the circumstances raised a proportionality issue as to whether the summary dismissal on grounds of serious misconduct, was justifiable;
- the process of termination was flawed as the Operation Manager “was not given a clear indication about the reason for his dismissal, even in the termination letter given to him at the time” which made it difficult for the operations manager to respond;
- the employer did not have a Human Resources specialist, which impacted the dismissal procedure;
- the Operations Manager was unfairly dismissed; and
- were it not for the unfair dismissal, the Operations Manager would have likely remained employed for a further six months.
Tips for Employers
Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
- review this Fair Work Commission decision
- seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
- train staff about policies and procedures in the work place and apply them consistently and fairly
- ensure a consistent approach when taking disciplinary action against an employee having regard to the culture of the work place
- speak to an employment lawyer regarding a suitable disciplinary procedure given the particular factual situation
- discuss with an employment lawyer the gravity of an employee’s conduct as to whether or not it justifies summary dismissal
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.