If faced with extreme provocation from a workplace bully, many employers succumb to the temptation of cutting corners.
That is particularly so where an HR investigation involves allegations of serious misconduct by a hostile employee.
However as this recent case demonstrates, resisting the temptation to shortcut procedural fairness requirements brings its own rewards.
Despite extremely trying circumstances, this employer managed to execute a ‘procedurally rich’ HR investigation which took deliberate steps to ensure procedural fairness to the misbehaving employee.
Final Warning and June Incident
This employee of almost eight years had a reputation for his violent temper and aggressive manner.
In November 2012, he was issued with a final warning following an altercation that included swearing and acting in an aggressive manner towards a supervisor.
Seven months later in June 2013, the employee was seen incorrectly operating a forklift, despite a prior toolbox meeting that covered the correct operation procedure.
When invited by two supervisors to again discuss the correct procedure, the employee became increasingly agitated and swore at them.
The employee then became violent, slamming a door and throwing a water cooler bottle that caused damage to a wall.
The employee did eventually ‘cool down’ and approach his supervisors stating that he was “stressed” and apologised for his behaviour.
Following this incident, the employee left work on sick leave for a number of weeks.
Upon his return to work a meeting with the employer was organised to discuss the June 2013 incident.
On 5 and 9 August 2013, the employee was invited to attend a series of meetings with his employer where a number of claims where specifically put to him:
- Failure to comply with a reasonable and lawful direction (namely use the forklift in the correct way);
- Engaging in threatening and abusive behaviour towards site management;
- Wilful damage of employer’s property;
- Acting in an inappropriate manner; and
- Being already subject to a final warning for similar behaviour.
At each stage the employee was given an opportunity to respond to the claims.
With no satisfactory explanation put forward, the employee was then dismissed.
Upon applying to the FWC for an unfair dismissal remedy the employee made the following contentions to mitigate liability:
- He had been discriminated against;
- The conduct was general frustration as opposed to a personal attack;
- The dismissal was a vindictive response to a previous complaint made about a supervisor;
- The employer fabricated evidence to facilitate the dismissal; and
- The final warning was improperly founded.
It was obvious to the FWC that this employee was looking for any excuse to escape liability for conduct that clearly amounted to a valid reason for his termination.
The employee’s excuses were not made out in any meaningful way, and when faced with discrepancies in the facts, the FWC favoured the employer’s compelling, genuine and detailed evidence.
The final warning from nine months prior was still current and maintained potency.
The prior warning’s contents were relevant as the conduct amounted to almost the same.
The FWC considered the employee demonstrated:
“very low impulse controls and a high level of aggression marked by abusive language and aggressive physical gestures (which caused physical damage to the employer’s premises)“
The FWC also considered the HR investigators “rightly felt threatened” by the employee’s behaviour.
In the face of the insubordinate, disrespectful and threatening behaviour of the employee, the FWC praised the employer’s HR investigation as “procedurally rich” that took deliberate steps to afford the employee procedural fairness.
Lessons for employers
Trying employees can test the limits of an employer’s patience.
Where conduct warrants dismissal and undermines the principles of cooperation and mutual respect necessary in a modern workplace, employers must resist the temptation to take short cuts.
Employers often fail to realise that testing conduct in response to an HR investigation can be nothing more than a device used to lure the employer into a hasty reaction and a compromised legal situation.
In the end, the profiled employee was the victim of his own misconduct and because of his employer’s ironclad workplace investigation the FWC had no reason to disagree with the ultimate dismissal action.
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 Aiono-Yandall v Linfox Australia Pty Ltd T/A Linfox Australia  FWC 1649 (18 March 2014)