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Sacked worker's c-word abuse & ‘blame game’ crashes before FWC

The day to day pressures of the modern workplace can give rise to many frustrations.

However, utilising the correct channels to raise grievances with employers and keeping emotions under control should be front of mind for disgruntled employees.

This employee’s aggressive conduct failed to impress the FWC[1], particularly when hearing of his description of an ER advisor “in terms of the female genitals.”

The employee’s refusal to follow proper channels for airing grievances resulted in his conduct being condemned by the FWC as “rank insubordination”.

Background

The employee in question (Mr Wilson) commenced employment on 20 July 2012 as Skid Steer Operator at a fly-in fly-out project.

Prior to his employment on the project, the employee attended an induction presentation and was provided with an offer of employment and a copy of the employer’s collective agreement.

Mandatory dispute resolution procedure

The collective agreement required employees to familiarise themselves with and comply with the employer’s various policies, procedures and guidelines.

Importantly, the collective agreement also contained a mandatory procedure to be followed for the resolution of employment related issues.

The trouble starts…

After an initial incident free 9 months of employment, the worker’s rocky disciplinary record commenced when he began to raise workplace grievances directly with the construction project manager, Kellogg Joint Venture-Gorgon (KJV) rather than with his employer as required by the collective agreement’s procedures.

One grievance raised by the employee alleged general, “harassment, intimidation, bullying, pressure and aggressive behaviour towards operators and labourers by leading hands and supervisors.”

Over a period of six months, the employee received two written warnings (including a ‘final’ warning) about his conduct including his continued failure to comply with the collective agreement’s dispute resolution procedure.

Aside from his employer’s warnings, on two separate occasions when raising his employment grievances with external parties, the employee was informed that he should pursue those directly with his employer.

Final warning

On 14 August 2013 the employer issued the employee with the final warning over his “repeated failure” to follow instructions and to abide by the dispute resolution procedure of the collective agreement.

Meeting over bullying allegations

On 23 August 2013 management representatives held a meeting with the employee about the outcome of its investigation into his workplace bullying complaint.

During the meeting the employee showed anger, raised his voice and engaged in swearing.

The employee also referred to employer representatives as “all incompetent” and subsequently stormed out of the meeting.

Termination

On 26 August 2013, the employer’s representatives attempted to reconvene the 23 August meeting with the employee.

Despite repeated attempts to secure his attendance at the meeting, the employee refused to take part.

The following day (27 August) the employer’s representatives managed to hold a meeting with the employee.

In the meeting, the employee was informed he was being summarily dismissed over his failure to follow reasonable and lawful instructions.

After the termination meeting but prior to leaving the site, the employee shouted to one of the employer’s representatives, “see you in f***ing court you red headed [c-word]”.

The employee subsequently filed an unfair dismissal claim with the Fair Work Commission.

What did the Fair Work Commission say?

Unsurprisingly, the FWC condemned the employee’s conduct.

With respect to his failure to obey his employer’s instructions, the FWC said:

“An employee is under an obligation to carry out lawful instructions.

It would be intolerable for employees to consider attendance at meetings requested by the employer to be at their discretion.

It would also be intolerable for employees to consider it appropriate behaviour to storm out of meetings, at a time of their own choosing, rather than conclude a meeting properly.

It is also unendurable for an employee, after being notified of their dismissal, to call the Employer’s representative a [c-word] and consider it should go unnoticed.”

The FWC considered the employee to be an “architect of his own misfortune” and drew an analogy to the employee’s blaming conduct to that of a driver involved in a car crash.

“While the Applicant may attempt to blame the Employer for his misfortunes, he was the “driver” on the road which eventually led to a crash and the termination of his employment.

The rules of the employment relationship “road” required him to comply with lawful instructions and raise any grievance within the Employer’s procedures.

However, his “traffic infringements” became numerous, and were sufficiently serious, to warrant a final written warning. …”

The FWC described the employee’s conduct as “serious or grave” and considered the refusal to comply with lawful instructions as “rank insubordination” and “inconsistent with the contract of his employment.”

The FWC considered the employee “adopted and conducted a course of disobedience which led the Employer to having no option, after a final written warning, but to dismiss him.”

Not unexpectedly, the employee’s unfair dismissal claim was dismissed.

Lessons for Employers

When conducting an HR investigation into an agitated employee’s complaints, HR personnel need to keep a cool head.

The employee in question engaged in a raft of difficult, aggressive and provocative behaviours with his employer.

By not succumbing to the employee’s provocations and maintaining a robust process, the employer was able to demonstrate ultimately that it had a valid reason for the employee’s instant dismissal and it had complied with the necessary procedural requirements along the way.

As the FWC observed, in the end the employee’s ‘crash’ was all his own doing.

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[1] Scott Wilson v Leighton Contractors Pty Limited [2014] FWC 5503 (20 August 2014)

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