Unfair Dismissal: Employer’s Failure to Respect an Employee’s Representative Contributes to Unfair Dismissal Finding

Fair Work Commission | [2017] FWC 4188 | 14 August 2017

Unfair dismissal upheld

Case summary

The Fair Work Commission found that a pharmaceutical company had unfairly dismissed a senior employee following a workplace bullying complaint, an escalating disciplinary process and allegations of unauthorised absences.

The decision is particularly significant because Commissioner Wilson criticised the employer’s failure to communicate appropriately with the employee’s paid representative, emphasising that representatives should be kept informed of developments and afforded the opportunity to put forward matters on behalf of their clients.

The Commission ultimately ordered compensation of $26,622, including a superannuation contribution.

Background

The employee was employed as a Brand Manager within the pharmaceutical division of a large company. He had extensive industry experience and was covered by an enterprise agreement.

During his employment, concerns arose about his performance and his relationship with his direct manager. In August 2016, he was placed on a Stage 1 performance counselling process.

In September 2016, the employee lodged a formal workplace bullying complaint against his manager. The complaint contained 19 allegations, including:

Demeaning and humiliating comments.
Exclusion from work projects and meetings.
Criticism of his work and professional competence.
Alleged inappropriate comments about his age and memory.
Exclusion from recognition for work he had undertaken.

An external investigator was engaged to investigate the complaint.

The investigation substantiated 13 allegations, partially substantiated one and did not substantiate five. The employer considered that three of the manager’s actions were inconsistent with its Diversity and Workplace Behaviour Policy.

However, the employee was not provided with the investigation report or an explanation of the reasons for the findings.

The disciplinary process

On the same day the employee was informed of the investigation outcome, he was advised that he would be subjected to a formal disciplinary process concerning his own conduct.

The employer raised allegations involving recordings of conversations, alleged failures to follow directions, external business interests and alleged inappropriate conduct towards his manager.

The employee became unwell and commenced a period of absence supported by medical certificates.

During the following months, the employer continued to pursue the disciplinary process. There were disputes about the allegations, the adequacy of the employee’s responses and his obligations to attend meetings.

The employee’s representative, Just Relations, communicated with the employer on his behalf, including advising that the employee was unwell and seeking clarification of allegations.

The employer nevertheless continued to send important correspondence directly to the employee, including directions to attend meetings and provide medical information.

On 19 January 2017, the employer terminated the employee’s employment, relying on his absences, failure to attend meetings and unresolved disciplinary matters.

The Commission’s findings

1. The employer’s handling of the bullying complaint was inadequate

Commissioner Wilson accepted that the employer had taken the positive step of appointing an external investigator.

However, the manner in which the findings were communicated was criticised. The employee had made detailed allegations, yet the outcome was conveyed without meaningful reasons or explanation.

The Commissioner considered that the lack of information failed to inspire confidence that the complaint had been properly addressed.

The timing was also significant. The employee was informed of the investigation outcome and then, within approximately an hour, told that he would face disciplinary action.

2. The employer failed to respect the employee’s representative

One of the most important aspects of the decision concerned the employer’s treatment of the employee’s paid representative.

At paragraph [118], Commissioner Wilson stated:

“The failure to recognise Mr Dircks and to communicate with him about important information plainly and obviously relevant to his client and his representation of him was disrespectful and discourteous and is to be wholly deprecated.”

The Commissioner went further, observing:

“The Fair Work Commission expects representatives to be accorded the opportunity to put forward such matters as they desire on behalf of the person they represent, and must be accorded the opportunity to be kept appraised of developments in relation to the person they represent.”

The Commissioner expressly recognised that this expectation applies irrespective of whether the representative is a lawyer, paid agent or another type of representative.

This is an important statement concerning the role of employee representatives in Fair Work Commission matters.

3. The employer’s stated reasons for dismissal were not convincing

The Commission considered the employer’s conduct throughout the employment relationship, rather than examining the final termination decision in isolation.

The Commissioner found that the employer’s stated reasons did not adequately explain the totality of its conduct.

The dismissal was found to be:

Harsh and unreasonable in relation to the employee’s failure to sufficiently justify his absences.
Harsh, unjust and unreasonable in relation to his failure to attend meetings.
Unjust and unreasonable to the extent that it relied upon the allegations raised against him during the disciplinary process.

The Commission was not satisfied that the employer had a valid reason for dismissal.

Remedy

The employee did not seek reinstatement, and the Commission agreed that the employment relationship could not reasonably be restored.

The Commission ordered compensation calculated as follows:

Component	Amount
Eight weeks’ wages	$24,312
Superannuation	$2,310
Total compensation	$26,622

The compensation was payable within 14 days and subject to taxation according to law.

No deduction was made for misconduct because the Commission was not satisfied that misconduct had contributed to the dismissal.

Significance of the decision

This decision provides several important lessons for employers, employees and representatives.

First, a workplace bullying investigation must be handled meaningfully. An employee who makes a detailed complaint should receive an appropriate explanation of the outcome. Simply advising that allegations were substantiated or unsubstantiated may be inadequate.

Second, an employer must approach disciplinary proceedings with procedural fairness. An employee should be provided with a genuine opportunity to understand and respond to allegations before a decision is made.

Third, employers should respect an employee’s appointed representative. Where an employee has appointed a representative, significant communications concerning the employee’s employment should not be conducted in a manner that unnecessarily excludes that representative.

The Commission made clear that these expectations are not limited to lawyers. They apply equally to paid employee representatives.

Finally, the decision demonstrates the importance of considering the entire employment relationship when assessing whether a dismissal was unfair. The Commission may look beyond the employer’s stated reasons and examine the circumstances leading to the termination.

Representatives and Commission Member

Commission Member: Commissioner Wilson.
Applicant’s representative: Alan Dircks, Just Relations, during the later stages of the employment dispute. The decision’s formal appearances section records M. Addison for the Applicant.

Disclaimer

This article is a general summary of a Fair Work Commission decision. It is not legal advice and should not be relied upon as a substitute for advice concerning an individual employment matter.

The decision is [2017] FWC 4188, delivered on 14 August 2017.