A recent unfair dismissal application was denied on the grounds of a fair warning and a clear breach of the code of conduct.
A sales consultant at a Victorian truck dealership who was summarily dismissed for an incident where he vented frustration on the showroom floor had his unfair dismissal application denied late last month.
The employee had been given a final written warning for talking to his sales manager on the phone with a “raised” voice in an “aggressive” manner and using swear words including “f**k” and “c**t”, and for sending a text message to the same person that said, in part, “there will be bloodshed everywhere”.
While on the face of it this might seem like an open and shut case, the Fair Work Commission (FWC) hearing, which happened over video conferencing due to the pandemic, demonstrated how complicated adjudicating an unfair dismissal can be.
In the FWC decision, commissioner Wilson had to weigh up a number of factors, including when a summary dismissal (a dismissal without notice) is warranted and who to believe when accounts are conflicting.
When is loud “loud enough”?
The incident that led to the dismissal was the consultant entering the showroom to a slammed door, and swearing loudly about a problem.
“Why the door slammed, how loudly he was speaking and what he was alleged to have said are contested matters,” the decision reads.
Details such as these take on heightened importance in a case about a summary dismissal. If an employee is being fired for a single incident that incident will be rigorously analysed in a hearing.
As the decision states, “The test [of a valid reason for dismissal] is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
So an employer can’t just prove that it felt the evidence warranted a dismissal, the test is what the FWC finds to have actually happened. This analysis relies on witness testimony and documentary evidence.
In the hearing, the consultant’s sales manager, the same one he texted about “bloodshed”, was the only witness to the incident to give evidence at the hearing on behalf of the employer.
The manager claimed the consultant came in the room, slammed the door, loudly swore “f**king bullshit!” and then said he was “sick of fixing other people’s f**king problems”. The manager said it was loud enough to cause him to interrupt a phone call he was on and make a comment, and that he talked to the consultant twice more afterwards about the behaviour.
The employee’s claim was essentially that he was muttering to himself out of frustration over a “fuel cap problem” and said “this truck is bulls**t and I’m sick and tired of fixing other people’s trucks and problems”.
He said the door slammed because of the wind and that the manager did not really address the incident at all on the day.
Whether or not the frustration was heard by others or directed at anyone else was key, as the employee was dismissed for breaching the section of the company’s code of conduct that reads, “Treat all people you deal with through your work with dignity and respect.”
Weighing against the truck dealership was that commissioner Wilson felt the manager’s recollection “lacked initial precision” and his oral evidence didn’t match the statement recorded the day after the incident by the company. Wilson also found that the manager did not give “a strong rebuke” on the day, and that he didn’t hear any convincing evidence about either the exact words of the consultant or whether the door was slammed on purpose.
Wilson also said swearing is quite common in Australia, and so not always a workplace issue. What matters is the tone and volume of the swearing, he says.
Weighing against the consultant was the fact that the workplace investigation into the matter found other people, who were in the reception and customer lounge area, heard enough to know someone was angry, meaning he was loud enough that his voice traveled some distance.
While he could not say for certain whether the consultant used a formulation of words that were aggressive towards colleagues, Wilson felt the employee, by both offering his own formulation and by arguing swear words were common in the workplace, essentially admitted to swearing loudly enough to be heard by colleagues.
In support of this finding, Wilson took on board the other evidence presented by the company – namely, the incidents that led up to his written warning, which contained a copy of the section of the code of conduct of which he was in breach.
The commissioner found the breach of the code of conduct was clear because, regardless of the exact formulation of the words, the incident was “loud enough and rude enough for others to be taken aback by what was said, as well as being an invitation to think poorly of the target of his concerns.”
HR best practice
There is no law that clearly outlines when someone’s behaviour is so egregious it deserves a summary dismissal. Furthermore, what might be unacceptable in one organisation can be normalised in the culture of another (swearing, for example). A rule of thumb Wilson cites from another case is “whether the conduct was of such a grave nature as to be repugnant to the employment relationship”.
Given the inherent contextuality of these rulings, to best persuade the commission, an employer needs to have documented all the relevant information (code of conduct, initial warnings, summary of complaints made by the employee, proof that those complaints were acted on, etc.) and have conducted a thorough workplace investigation.
The key takeaway for HR professionals is that you have to follow best practices at all moments. You don’t know when an unfair dismissal will be applied for, or what evidence will sway the commissioner.
By issuing a warning beforehand and holding fair consultations afterwards, where the employee had the chance to present evidence for why he shouldn’t be dismissed, the HR manager overseeing the matter complied with the law and helped their employer immensely.
If they hadn’t, and instead this case hinged on just the investigation into the incident, chances are the outcome would have been different. The commissioner found the testimony of the only witness at the hearing to be questionable, gave limited weight to the statements of other employees, and gave special weight to the quality of each person’s testimony (it’s a subjective measure – Wilson said the consultant’s “lack of candour” was a determining factor).
So, to make sure a seemingly open and shut case is treated as such, HR has to do the right thing before and after the incident, and be ready with the evidence.
Understanding the rule of the law is critical for all HR professionals. This AHRI short course is perfect for new HR professionals looking for an introduction to HR law.