Demonstrating grace under fire, this employer’s response shows that a thorough workplace investigation into a serious matter can be conducted in a matter of hours and under extreme pressure.
When faced with an unexpected and uninvited tirade of abuse from a senior worker over the course of two days, the employer managed to efficiently deal with the apparent bully and properly discharge its investigation requirements under law.
The employee in question had been employed for two years, most recently as Leading Hand.
The first bullying incident occurred immediately after a co-worker was injured on site. The employee unleashed a tirade of abuse and allegations against two senior work safety managers, outlining his dissatisfaction with their handling of the situation.
The abuse included shouting, swearing and the use of obscene language. The employee further questioned their competence as work safety officers and generally acted in an aggressive and demeaning way.
The second bullying incident occurred the very next day, when the employee approached the co?workers from the previous incident and sarcastically suggested he was there to apologise. He then proceeded to demand that the managers in fact owed him an apology for spreading “lies”, and stipulated they must apologise in front of the entire worksite (consisting of hundreds of employees) by “smoko” or he would “shut the site down” in protest.
Faced with what amounted to serious bullying behaviour of senior managers, the employer conducted an immediate workplace investigation. When questioned, the employee denied, on more than one occasion, that the conduct had occurred.
Not surprisingly, the employer summarily dismissed the employee for serious misconduct – i.e. a breach of its workplace enterprise agreement which prevented vilification of co-workers.
Following his dismissal, the employee applied to the FWC. The crux of his argument was that the employer had failed to properly articulate the reasons for his dismissal resulting in a lack of procedural fairness. Also, he argued the decision to dismiss him had been made prior to his meeting with the employer and there was no valid reason for his dismissal. The employee called more than one witness in an attempt to corroborate his version of events (i.e. that the incidents had not occurred in the way alleged by the employer).
The employee also suggested that in the context of the worksite, being male dominated and “blokey”; swearing was common. He sought reinstatement and in an act of apparent contrition did not seek payment for lost wages.
The FWC was unimpressed by the employee’s evidence. Where it differed from that presented by the employer, the FWC preferred the employer’s version of events. In particular, while evidence for the first incident was lacking, it was clear to the FWC that the bullying behaviour demonstrated at the second incident was just a continuation of the behaviour from the previous day.
The employer had a clearly valid reason for the dismissal of their employee. Despite the “blokey” nature of the worksite, this did not excuse abusive and “disgusting” language directed at other employees and was a clear breach of the enterprise agreement covering the site.
The employee did in fact have more than one opportunity to respond to the allegations, despite the time constraints surrounding the investigation. The context of his impromptu meeting with managerial staff and delegates following the two incidents, the FWC found, should have been enough to make it clear as to their purpose. At this meeting, the employee chose not to respond when given the chance.
The FWC made a point of suggesting that given the gravity of the bullying incident, reinstatement would have never been an option.
Lessons for Employers
The profiled case demonstrates that workplace bullying can occur when you least expect it and without warning. For that reason employers need to know how to respond appropriately and where necessary conduct a rapid investigation of into alleged workplace bullying.
Often a misbehaving employee will realise that he/she is in deep trouble and, as a last ditch manoeuvre; will attempt to bait the employer into a hasty decision, thus compromising the employer’s legal position.
The facts of this case demonstrate the importance of maintaining a level head when faced with aggressive and extreme bullying behaviour. In what is undoubtedly a highly emotional situation, it is nevertheless possible to ensure that you comply with workplace investigation requirements even where time is a factor or a volatile personality is involved.
Where a summary dismissal is later called into question, the employer must prove that the facts existed to support its disciplinary decision on the balance of probabilities. By undertaking a prompt and focussed investigation and importantly, giving the employee in question an opportunity to respond to the allegations, employers will be in a better position to satisfy the necessary proof requirements.
 Mr David Grogan v Forgacs Engineering Pty Ltd T/A Forgacs  FWC 1417 (29 April 2013)