The Fair Work Commission refused an employee’s application for unfair dismissal despite finding that the employer was aware of his inappropriate behaviour and did not intervene in a timely manner.

The employee had made offensive remarks and bullied co-workers repeatedly over a number of years. The employer had been aware of this conduct since 2009, as a number of complaints had been made against the employee. However, it took no action to "counsel, advise or retrain" the employee and made no attempt to remedy the behaviour, prior to terminating his employment for misconduct in 2012.

The Commission found that the employer’s decision to dismiss the employee was justified as he had acted in breach of its policies over a number of years and in a manner that was inconsistent with his managerial position. The employee also demonstrated "no insight into his unacceptable behaviour". These factors also meant that the dismissal was not unduly harsh, despite the employer’s knowledge of the conduct and failure to intervene earlier.

Mostafa Hassan v Australia and New Zealand Banking Group Limited [2013] FWC 3848 (19 June 2013)