A recent failure to comply with the “basic tenents of civility” left one union official without a leg to stand on before the Fair Work Commission. Thanks to some cool, calm and collected HR staff members, the union official had no excuses to alleviate the seriousness of his behaviour, which included threats, racial abuse and aggressive provocation.
During an HR investigation it is inevitable that you will encounter a range of different people, often with differing interests to yours and a diametrically opposed agenda.
A competent HR investigator needs to be aware of the possible tactics used by difficult opponents during investigations and how to handle the unreasonable and sometimes hostile behaviour that is often consequential to such workplace disputes. Savvy investigators will be able to keep their investigation on track and refuse to be baited by often confronting behaviour.
The union official at the centre of this article had a history of difficult interactions with the employer and in particular their contractors. As the union’s official with a right of entry permit issued pursuant to the Fair Work Act, he was entitled to enter the workplace, hold discussions with members or employees entitled to be members of his union, and hold these discussions in rooms set aside by the contractor.
On more than one occasion, the union official alerted the employer’s contractor of his dissatisfaction with the meeting rooms being utilised. It was the manner in which he communicated his dissatisfaction and his associated behaviour that was cause for serious concern.
After multiple run ins, the employer applied to the Fair Work Commission (FWC) to have the union official’s right of entry revoked. The FWC complied and banned the union official from entering the Pilbara workplace for the remainder of 2013.
Over a 6 month period the union official overtly breached a number of conditions of his right of entry permit. These breaches all had the cumulative effect of placing the employer and their contractors on the back foot.
His behaviour included:
- Shouting, swearing and a generally demeaning attitude towards the contractor’s staff over the phone
- Threatening and aggressive behaviour in person
- Failing to comply with the contractor’s instructions
- Trespassing on the worksite
- Misconstruing his right of entry to the employer’s contractor
- Holding meetings in unauthorised locations, with sometimes unauthorised employees
- Directed racial and threatening abuse at the deputy employee relations manager
The swearing and abuse directed at the employer’s contractors was well outside any acceptable or tolerable limits, even for a construction site. Not only was there no excuse for the union official’s behaviour, there had been no provocation from the staff he directed it at. Despite contacting the union’s Branch Secretary and receiving written assurances that his behaviour would be modified, it was not.
The FWC suggested that the entry to the workplace and behaviour therein, must be exercised in line with legislative objectives under the Fair Work Act, which includes acting in a proper manner. This union official chose to act in a manner incompatible with his rights and obligations. It was an abuse of the rights conferred by the Act and exercised by diligent employee representatives.
Lessons for Employers
This employer’s contractors over a number of months found themselves faced with unacceptable, uncooperative, threatening and abusive behaviour. The person they were dealing with alternated between furious, animated, enraged and aggressive. This union official misconstrued his rights to the employer’s contractors and trespassed on the employer’s property.
Unfortunately, none of this behaviour is unique and HR investigators need to be conscious of how to deal with such behaviour when confronted with it. Some representatives have been known to deliberately engage in aggressive, accusatory and extreme behaviours as a device to put the HR investigator “off their game”.
This employer ultimately found some reprieve through the Fair Work Commission, however not all employers will be so lucky. Knowing how to quickly and effectively respond to unreasonable or cunning behaviours is vital in order to ensure that a workplace investigation is not frustrated.
 Bechtel (Western Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union-Western Australian Branch  FWC 2498 (26 April 2013)