In the lead up to a dismissed employee’s adverse action claim, the Federal Court has had to consider competing issues for the employee’s reinstatement until the trial.
At first instance, the employee was reinstated; albeit with strict conditions[1].
Less than two months later, the Court revoked the employee’s reinstatement after threats for co-workers were left in a number of public places[2].
The employer’s actions were also questioned by the Court over its failure to take any steps to prevent harassment from occurring, despite holding fears that it would.
Background and Dismissal
On 28 January 2014, Mr Johnson an employee of 24 years and union delegate for 18 years, was dismissed by his employer DP World.
In his role as delegate, the employee had been involved in negotiating a new enterprise agreement for the workplace.
The employee brought an adverse action claim under the FW Act alleging a prohibited reason for his dismissal – namely that he was a union delegate.
The employer argued that the dismissal arose from the employee’s misconduct.
In particular, the employer claimed the employee:
- Induced an employee to lie during an internal workplace investigation; and
- Bullied and harassed a female employee for participating in the employer’s internal investigation
Seeking Reinstatement
The employee sought reinstatement by his employer until the adverse action trial took place.
The employer countered that reinstatement would:
- Undermine the authority of its management;
- Increase issues of bullying, harassment and discrimination against female employees who had been involved in the workplace investigation;
- Send the wrong message to employees; ie. that they could get away with lying to its management and unethical behaviour generally
When considering the employee’s reinstatement, the Court heard evidence of a workplace in which certain employees experienced “genuine fear of harassment and intimidation”.
Reinstatement Conditional
Despite these genuine concerns, the Court granted the employee’s reinstatement with a number of strict conditions.
In particular, the reinstatement was temporary and made no judgment about the rights and wrongs of the adverse action claim.
The reinstatement was able to be revoked at any time if there was evidence of the reinstatement creating trouble.
Reinstatement Revoked
Less than two months after the employee’s reinstatement, the Court found cause to revoke it.
The employer’s initial fears of increased tension, and further harassment and intimidation were quickly realised.
In early March, particular incidents included:
“I will not forget c****” and “I will remember this c****” scrawled on a table where a previously targeted employee sat
“I’ve never given anyone up in my life” written behind a door in a refuel area
A supporter of one of the previously targeted employees had his overalls defaced with the words “Give up dog f***head”
The employee denied involvement in each of these events and claimed that the employer had more than one chance to report the misconduct to the employee yet chose not to.
The Court noted that the employer had taken no steps to investigate these events, or to seek to prevent their recurrence.
However the essential condition on which the employee’s reinstatement was made, was that there would be a cessation of harassment and intimidation of certain employees.
The Court retains the power to once again reinstate the employee pending the adverse action trial, provided the harassment and intimidation ceases.
The Court was of the view that – the employee would not be permitted to return to the workplace – until such time as:
- Those responsible for the March incidents come forward and explain their actions;
- No further incidents occur; or
- The employer take timely and genuine attempts to prevent a recurrence
Lessons for employers
While the ultimate outcome of the adverse action claim remains to be seen, this case demonstrates the lengthy and protracted legal battles that employers can find themselves in with perceived workplace troublemakers.
When investigating workplace misconduct, employers need to ensure that any investigation is conducted impartially and with procedural fairness, regardless of an alleged wrongdoer’s disciplinary history or role as a union delegate.
Where an alleged wrongdoer holds a special position, such as a union delegate, care must be taken so that if faced with legal action alleging that freedom of association protections were infringed, the employer’s actions will be defensible.
Employers who dither or sit on their hands will fare no better.
As is demonstrated by the profiled case, a failure to investigate workplace bullying at all or properly will risk leaving the door open for a dismissed employee to be returned to work.
[1] Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 134 (18 February 2014)
[2] Maritime Union of Australia v DP World Melbourne Limited [2014] FCA 436 (4 April 2014)
