Case note: B v Aero-Care Flight Support Pty Ltd [2013] FWC 6559

A recent decision by the Fair Work Commission provides a timely reminder of the importance of following due process when investigating bullying complaints and disciplining or dismissing employees.

With the Federal Government's new workplace bullying laws coming into effect on 1 January 2014, it is more important than ever for employers to ensure bullying and harassment complaints are dealt with appropriately, striking the balance between treating the complaint and conduct seriously and not creating a workplace environment of excessive sensitivity. It is also important, as the case discussed below shows, to characterise behaviour appropriately and know the difference between a rude, abrasive personality and bullying.

Facts

In B v Aero-Care Flight Support Pty Ltd [2013] FWC 6559, a senior employee, Ms B, was dismissed on 30 July 2012 for breaches of Aero-Care's Bullying, Harassment and Discrimination Policy following a final warning issued in May 2012. Aero- Care claimed the conduct amounted to serious misconduct and constituted a valid reason for Ms B's dismissal.

Ms B claimed she had been unfairly dismissed, stating that correct procedures had not been followed prior to her dismissal and that she had not received a final warning. She also claimed that the bullying allegations relied on by Aero-Care were without basis and that she had been treated unfairly.

Aero-Care claimed that between 30 January 2012 and 30 July 2012 it has received several complaints from employees about Ms B's management style and behaviour towards other employees and passengers and had spoken to her several times about these complaints and her conduct. Ms B was also stood down from 22 May 2012 to 4 June 2012. The allegations of poor conduct included:

  • failing to inform management about a medical emergency on arrival that resulted in the death of a passenger;
  • disclosing confidential information;
  • intimidating staff members;
  • having a confrontational and hostile manner;
  • insulting and speaking down to employees; and
  • playing 'mind games';

The evidence presented at the hearing by both parties indicated that on more than one occasion Ms B was asked to attend a meeting but was not provided with adequate details of what the meeting would be about and that during the meeting, few details of the complaints made against her were provided to Ms B. Further, the initial allegations of bullying which led to Ms B being stood down related to disclosure of confidential information only, not bullying, yet bullying was the reason provided to Ms B for the suspension. Following the suspension, further complaints about Ms B were received and the employer called a meeting with Ms B during which the decision was made to terminate her employment.

Decision

The Commission held that if these incidents were so serious as to lead to Ms B being stood down, they should have been clearly articulated to her in the letter advising her that she was being stood down and/or during the meeting prior to her suspension.

The remaining complaints alleged to have been received after Ms B returned from being stood down were found to be cause for concern but, at best, should have resulted in Ms B receiving a warning 

Deputy President Asbury emphasised the importance of the need to notify employees of the reason for their dismissal and provide them with an opportunity to respond. It was clear from the evidence that Ms B has been advised that the reason for her dismissal was bullying and harassment. However, it was also clear that Ms B had requested details of the allegations against her and had not been provided with information sufficient for her to respond to the allegations before she was dismissed.

In relation to whether Ms B was warned about any unsatisfactory performance before the dismissal, the Commission was satisfied that she had been warned in connection with her alleged breach of confidentiality (the real reason for her being stood down) and as such she should have been on notice that any further breach of Aero-Care's policies or procedures could result in her dismissal.

The Commission found that Ms B had been unfairly dismissed and awarded her compensation of $9,230 being 12 weeks' pay less the four weeks she had already received when she was dismissed.

Lessons for Employers

From 1 January 2014, employees will be able to apply to the Fair Work Commission for an order to stop alleged bullying. These changes will leave less room for error in workplace bullying investigations. When addressing complaints of bullying in the workplace:

  • Characterise the conduct complained of correctly - find balance between taking the allegations seriously and not creating an environment of over sensitivity.
  • Ensure the conduct is clearly identified and put to the accused employee - develop a plan before commencing an investigation and/ or addressing the accused employee, avoid getting side-tracked by other issues during discussions or having too many people separately addressing the issues individually and at different times. Ensure the employee has understood the message of any discussion and address any confusion immediately.