Beware the trap of the disgruntled employee – Part 1
It’s a familiar situation ‑ an employee who pushes their manager’s buttons.
Challenging and questioning rather than simply getting on with things – “like the others do.”
Disgruntled employees with unresolved workplace issues can be difficult to manage.
Some employers adopt a “put up with it or there’s the door” position.
Yet, managing a disgruntled employee is not as easy as that.
Traps abound for the unwary – as today’s article shows.
Case 1 – How not to handle a workplace dispute
Ms Luckman worked in a permanent part time capacity for a property management company.
Her role involved managing a portfolio of properties, including sales and leasing.
Two disputes arose during Ms Luckman’s employment.
The first dispute arose when Ms Luckman considered that she had a full-time workload although she was working in a part-time capacity, based on the amount of properties she was expected to manage.
The dispute was resolved after Ms Luckman raised issue with her manager.
The second dispute arose over a management decision that Ms Luckman would be managing two new properties in addition to her normal duties.
Ms Luckman was advised of the decision on 13 August 2015.
Ms Luckman objected to management’s decision on the basis that although should would be burdened with the responsibility for managing the properties, she would be effectively denied the associated sales commissions because each sale would occur during hours when she was not at work.
Later that day, Ms Luckman was invited to a meeting with the employer’s General Manager, Mr Walker.
Meeting – 13 August 2015
During the meeting Mr Walker explained the reasons for the decision and advised that he did not consider the transfer of work to her as unusual or uncommon.
Ms Luckman disagreed with Mr Walker’s explanation and at the conclusion of the meeting made comments along the lines of “I’m done, I’m over it, I’m out of here.”
After returning to her desk, Ms Luckman sent Mr Walker an email which included the following:
“Further to our meeting today as I feel there is nothing more to discuss it would be appreciated if the files could now be handed over so I can continue the management of those properties.”
Mr Walker responded by email which included the following:
“You may feel there is nothing more to discuss, but there is. It’s nothing to lose sleep over but I will make time for us to meet again.”
On 20 August 2015 Ms Luckman was invited to a further meeting with Mr Walker.
At the start of the meeting Mr Walker read out a letter terminating Ms Luckman’s employment.
The letter advised “misconduct” as the reason for Ms Luckman’s dismissal.
Unfair dismissal claim
Ms Luckman challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission.
The FWC ultimately found the dismissal to have been harsh and unreasonable and thus – unfair.
Conduct not inappropriate
The FWC considered that the conduct of Ms Luckman in the meeting did not amount to a valid reason for her dismissal.
Although observing that Ms Luckman had been angry and hostile during the meeting of 13 August, the FWC recognised that there had been no use of inappropriate or foul language, or threatening or abusive behaviour, by either party.
The FWC also recognised that Ms Luckman’s email to Mr Walker immediately after their meeting demonstrated that she was ready to follow the instruction about the management of the two properties in question.
In particular the FWC commented:
“The meeting on 13 August 2015 was a robust discussion where an employee had the courage to voice her disapproval over the way that she perceived that she had been victimised over the last four years.
The mere fact that there was no swearing or threatening language used solidifies the view that Mr Walker’s decision to terminate Ms Luckman’s employment was a monumental over reaction.”
Robust workplace discussions
Importantly for employers, the FWC made the following observation about robust discussions between employers and employees:
“Robust discussions between employees and employers are a part of the Australian industrial landscape.
The notion of master/servant where an employee was not allowed to question the decision of the employer disappeared with the industrial revolution.”
Ultimately, the FWC handed down a decision of unfair dismissal.
As to the question of whether Ms Luckman could be reinstated, the FWC rejected a claim by the employer that there had been a breakdown of trust in the employment relationship.
Lessons for employers
- Robust workplace discussions between an employer and employee are an accepted feature of the Australian employment landscape.
- An employee may raise a workplace issue directly affecting him/her providing it is raised in an appropriate way.
- Employers are not entitled to deem the mere raising of workplace issue as misconduct or insubordinate behaviour.
- If in doubt – seek advice.
 HP Bowral Pty Ltd T/A Highlands Property  FWC 1250 (3 March 2016)
About the author
Brad Petley, is the Principal of Acumen Lawyers, a boutique employment and safety legal practice based in Brisbane, but happily solving workplace issues for clients Australia-wide.
Brad is a QLS Accredited Specialist in Workplace Relations Law.