Workplace bullying is causing serious headaches for employers and has many ramifications on the workplace in general.
The misdeeds of problem employees must be properly dealt with in order to meet an employer’s legal obligations, and to protect the well being of other staff.
Unfortunately, workplace bullying is not always brought to the attention of the affected employer and as this recent case shows, this can result in years of costly legal consequences.
In 2011 an employee was stood down on pay for serious misconduct, namely, assaulting his supervisor. Following a thorough workplace investigation by the employer, the employee was dismissed. An application heard by the (then) Fair Work Australia found in the employee’s favour, concluding that while there was a valid reason for their dismissal, however it was harsh in the circumstances. Reinstatement was ordered as the appropriate remedy.
In 2012, on appeal, the Full Bench of the FWA, instead found in favour of the employer, thereby upholding its dismissal of the employee and overturning the original judgment.
This decision was subsequently appealed by the employee and in January 2013 the Federal Court of Australia again found in the employer’s favour, however ordered that the application needed to be determined afresh by another Full Bench. Both employer and employee again appealed this decision, which was still before the Full Court of the Federal Court of Australia.
Finally, in November 2013, a newly convened Full Bench of the Fair Work Commission, re-determined the employee’s original gripe; that he was, in the circumstances, unfairly dismissed for fighting with his supervisor.
The employee had been employed, without relevant incident, for 30 years. In June 2011 he was involved in a physical altercation with his supervisor, who had a history of bullying and aggressive behaviour.
Following a heated verbal exchange where the supervisor repeatedly threatened to “cave [the employee’s] head in”, he goaded the employee into a meeting outside. A short time later, the two men reconvened in the car park where the employee proceeded to punch and otherwise physically assault the supervisor.
A number of other employees were present at the altercation and it was also caught on CCTV. Throughout the altercation the supervisor did not move to defend himself or attack the employee in any way.
The employer carried out a workplace investigation into the incident and decided to dismiss both the employee and the supervisor for serious misconduct on the basis of their zero tolerance approach to verbal and physical violence.
The employee argued his dismissal was unfair due to years of intense provocation and goading by the supervisor, who within the workplace was largely seen as a bully.
Current Full Bench Majority Decision
Once again, the majority of the FWC Full Bench decided in favour of the employer. There was no doubt that there was a valid reason for the employee’s dismissal. Procedural fairness throughout the workplace investigation was also not in question.
The majority did accept that the employee was provoked by the supervisor, and that the employer had failed to take any action again the supervisor previously, despite holding suspicions about his behaviour.
The employer agreed that an “anti-dobbing” culture existed within the workplace and would need to be remedied.
Despite possible extenuating circumstances, the seriousness of the conduct meant that the employee’s dismissal was not harsh, unjust or unreasonable.
The FWC’s decision was not unanimous. One member of the Full Bench remained convinced that the supervisor’s long history of abusive, threatening and bullying behaviour towards the employee, and other employees, was enough to alleviate some culpability from the employee.
The decision pointed out the nasty and vindictive bully and harassment of employees engaged in by the supervisor and the ongoing failure of the employer’s management to address the behaviour.
As such, in a dissenting opinion, it was suggested reinstatement was the appropriate remedy for a dismissal that was harsh, notwithstanding misconduct that constitutes a valid reason.
Lessons for Employers
The issues in this case exemplify the pervasive and costly effects that workplace bullying can have on a workplace.
A problem employee who had a history of bullying tactics against other workers was essentially given free-reign due to a workplace culture that discouraged complaints to management.
When things became sufficiently serious, the dedicated HR department of the employer moved swiftly and efficiently, but still ended up engaged in years of protracted and costly legal proceedings (which are still not at an end), despite the ultimate justification for its employee’s dismissal.
All in all, a cautionary example that prevention is much better than the cure.
 DP World Sydney Limited v Lambley  FWCFB 9230 (22 November 2013)