A case about an employee who felt he was untouchable, a union representative who had to defend the indefensible and a well defended summary dismissal.
To claim your dismissal was unfair after saying, “I’ll f**ck you up the arse” to an employee during a heated exchange and threatening to “f**king slap” another, would seem somewhat ludicrous, but that’s exactly what this man has done.
A recent Fair Work Commission decision has supported the decision of well known Australian fashion designer Alex Perry to terminate an employee following serious misconduct, including a barrage of foul and offensive language and threatening behaviour in the workplace.
His dismissal wasn’t a response to a one time offence. The pattern maker and machinist, who had been an employee of Alex Perry since November 2013, reportedly exhibited threatening behaviour to a number of female staff members, including an HR manager, on three separate occasions.
Interestingly, the decision also reaffirms that employees don’t necessarily have a right to face the decision maker who says their dismissal is warranted.
The precious employee
The first incident occurred when a female colleague made comments about the quality of the pattern maker’s work. Agitated, the pattern maker responded in a way that led to “a violent, aggressive and antagonistic verbal altercation in front of the entire Alex Perry workroom,” according to the FWC report.
As tensions increased between the two, witnesses say the pattern maker said, “I’ll f**k you up the arse”, to which the female employee responded, “No you won’t. I’m not your wife.”
The pattern maker reportedly stood up from his machine and became agitated. The female employee antagonised him by saying, “Hit me, hit me, do it, I’ll f**king sue you.” Others in the work space were worried he was going to become physically violent towards the woman. Both employees were issued with official warnings.
In the second instance, the pattern maker’s manager asked him to make a dress. The manager said, “Could I get you to start working on this leather dress. Here is one you’ve done before. It looks great. Can you please go slow with this new one. I need it to be really perfect.”
The pattern maker responded, “Why do you say that, is someone saying something? Who is saying something?” Then he pointed to the workstation of another female employee who was not yet in for work, insinuating she had made comments about his quality of work. He then said, “I will f**king slap her”. He was described as being loud, aggressive and angry in his delivery.
The final straw
In the third instance, the pattern maker was called into a meeting with the global sales and HR manager at Perry’s request. Again, it was regarding the quality of his work. When his uneven stitching was pointed out to him, he reportedly shouted, “These are perfect… I am the best machinist here”.
When asked to sign a warning letter, he allegedly jabbed his finger at the female HR manager and said, “I’m not signing this. Who are you? You are nothing. I want to speak to Alex. He thinks I am amazing.”
After careful consideration, FWC deputy commissioner Peter Sams came to the decision that the employee’s behaviour warranted “serious misconduct” which meant his employer had grounds to summarily dismiss him. After being let go in September last year, he filed for unfair dismissal, making several arguments, including that he deserved compensation and reinstatement on the grounds that his behaviour was not inappropriate.
The pattern makers complained he was that he wasn’t afforded the opportunity to present his case to Perry, claiming that as the key decision-maker in the company, Perry should have personally investigated the claims made by the female staff. The FWC denied this claim, finding that Perry had exercised procedural fairness.
“It’s not in every case that the decision-maker is obliged to meet personally beforehand with the employee who is to be dismissed,” says Sams. He says in circumstances where the evidence is “overwhelming and consistent”, as was the case in this instance, the final decision maker can be satisfied with the decisions of their senior management team.
“In any event, the applicant did meet with the decision-maker on 10 September 2018 and Mr Perry invited him to explain his behaviour. It could hardly be said that Mr Perry was not involved in the disciplinary process.”
The employee also claimed that “swearing and banter was commonplace in the office”, but denied ever having sworn himself. Deputy commissioner Sams dismissed this as a “red herring excuse” and also noted the strangeness of highlighting the workplace culture of swearing while also denying any involvement.
“This defence is usually advanced when an employee admits to swearing, but claims it is a normal and commonplace occurrence for employees to swear at work,” says Sams.
Even though the pattern maker reported being chummy with Perry, he was quick to try and throw him under the bus, claiming Perry himself had made sexist comments such as referring to a female worker as a “bitch” and saying something along the lines of, “some women need slapping from time to time”.
“I’m not signing this. Who are you? You are nothing. I want to speak to Alex. He thinks I am amazing.”
The FWC put these claims down to distraction tactics, with FWC deputy president Sams saying, “This was obviously designed to deflect or minimise his own threat of slapping [the female employee]. Unsurprisingly, Mr Perry made the following rhetorical observation: is it really believable that a person who has built his career and reputation on the international high-end women’s fashion industry, would ever make such a derogatory and offensive comment. Mr Perry’s denial of any such conversation is accepted.”
HRM has covered many other cases where a culture of banter is used as a justification for bad behaviour – it’s very rarely a good enough excuse. If comments made towards a colleague are offensive in any way, it’s not banter, it’s bullying. Even if swearing was accepted as the norm in this workplace (and it sounds like it wasn’t), what this employee is accused of doing his miles away from lighthearted, friendly banter. The deputy commissioner doesn’t even seem to think it’s not even on the same continent.
“Such conduct will invariably be grounds for summary dismissal, as it will likely result in a risk to the health and safety of the person to whom the language is directed,” says Sams.
In response to the employee’s claim that he was respectful towards his colleagues, Perry’s witness statement said this wasn’t out of the blue behaviour for the pattern maker. In the past, he’d apparently said something along the lines of, “sometimes women just need a slap”.
In giving his evidence, Perry said he took a hard line with anyone who caused his employee’s distress as he’s spent his “entire career on making women feel good about themselves”.
Perry has reached his limit with the pattern maker, saying, “It was not a matter of giving [him] an opportunity to improve his performance. It was [his] aggressive and unacceptable behaviour towards my employees that resulted in his dismissal.”
A silk purse out of a sow’s ear
Deputy Commissioner Sams said the CFMMEU representative who was handling the pattern makers case was, “left to valiantly build a case akin to creating a ‘silk purse out of a sow’s ear’.”
Describing the employee’s behaviour and disregard for company policies as “appalling”, Sams says the CFMMEU representative was asked to “defend the indefensible”.
In order for the pattern maker’s case to hold water, he would have had to prove the employer had acted in a harsh manner regarding his poor performance, which he could not. Even if he could, Sams noted that a genuine apology for his behaviour and realistic assurance that he would not reoffend would be critical factors.
“None of these elements or anything resembling them were evidenced in this case. This weighs against a finding of unfairness. In the face of such overwhelming cogent and corroborative evidence, it is somewhat surprising to me that the Union, which [I’m expressly told] comprises 98 per cent women members, working in poor sweatshop conditions, would have represented a person who has, at best, little respect for women,” says Sams.
Having conversations with staff about their poor performance, or bad behaviour, can be tough. AHRI’s short course ‘Having difficult conversations’ can help to hone your skills and increase your confidence in these situations.