In Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners [2014] 8278, the Full Bench of the Fair Work Commission upheld the dismissal of an employee involved in a dispute with a co-worker, accepting the employer’s argument that it was the only way to resolve the dispute. 

The facts 

The dispute in this case was between two Bremick employees, Ms Lumley and Ms Cook. In mid 2013, Bremick conducted a mediation between the two employees to try to resolve their dispute, and subsequently issued specific work procedures to each employee to avoid further conflict. These procedures were accompanied by written warnings that any failure to comply with the procedures could result in dismissal.

Despite these active steps by the employer, the conflict continued and worsened over time. The working relationship between Ms Lumley and Ms Cook broke down, and this had a direct impact on the employees’ work performance and their dealings with Bremick’s clients. Ms Lumley was given two further warnings for her conduct, including a final written warning in September 2013. 

Mr Jamieson of Bremick management met with Ms Lumley and Ms Cook in February 2014 following a further altercation between them. Ms Lumley used her meeting to repeatedly goad Mr Jamieson to dismiss her, which he duly did with immediate effect (and the payment of one month’s salary in lieu of notice). 

Ms Lumley then brought an unfair dismissal claim against Bremick. 

The first decision 

Vice President Watson found that there was a valid reason for Ms Lumley’s dismissal based on her course of repeated inappropriate conduct towards Ms Cook. VP Watson also noted that Mr Jamieson’s role required him to be absent from the office regularly and that problems between the two employees seemed to arise during his absences. 

VP Watson accepted Mr Jamieson’s evidence that the relationship between Ms Lumley and Ms Cook had deteriorated to the extent that something needed to be done for the benefit of the business, and that Ms Lumley’s dismissal was a valid means of resolving the workplace conflict. 

Accordingly, Ms Lumley’s claim was dismissed.

The appeal 

On appeal, the Full Bench of the Fair Work Commission upheld VP Watson’s findings. 

Accepting that Mr Jamieson did not go into the meeting with Ms Lumley intending to dismiss her, the Full Bench determined that “[w]hat caused the dismissal was Mr Jamieson’s realisation in his discussion with Mr Lumley on 3 March 2014 that the conflict between Ms Lumley and Ms Cook not only remained unresolved but was likely to worsen and cause continuing problems in the workplace”. Ms Lumley’s dismissal was held to be a valid response by Bremick management to that situation. 

The Full Bench focused on the impact of the employees’ conflict on Bremick’s business, and the fact that Bremick had to take action to deal with it, rather than on which employee was more blameworthy for the conflict. It was accepted that both parties were equally blameworthy. 

Lessons for employers 

Employers should be wary of using dismissal as a means to resolve workplace conflict. 

In this decision the Commission accepted that the workplace conflict was affecting the employer’s business, and that this was a valid reason for dismissing one of the employees involved in the conflict. However, the Commission is likely to only adopt this approach in a very discrete set of circumstances. There have been a number of past decisions where the Commission has found dismissals to be unfair where two employees have engaged in the same or similar conduct, but only one is dismissed (as discussed in our previous alert). It is not clear whether this argument about unequal treatment being harsh was raised by Ms Lumley before the Commission in this matter. 

Employers managing workplace conflicts should ensure that they establish and follow appropriate and equitable processes to try and manage such conflicts. 

Employers should also consider whether alternative dispute resolution may assist resolving minor, personality-driven conflicts. 

In light of the considerable risks to an employer if the process they follow is found to be deficient, employers should always seek legal advice before contemplating the dismissal of an employee involved in a workplace conflict. 

Please contact the Workplace Relations, Employment and Safety team if you would like to discuss this alert.