Managing employee conduct and behaviour can be a challenge. The question of what is – and is not – appropriate in the workplace depends on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.
In unfair dismissal claims relating to unacceptable conduct and behaviour, the Fair Work Commission (FWC) will consider all of these factors – industry, workplace culture, community standards – in determining whether the dismissal was fair. The FWC was tasked with this in its recent decision in Meredith v Chad Group Australia Pty Ltd [2020] FWC 1467.
The employer in this matter was a family-owned and operated manufacturer and supplier of building products. It summarily dismissed a truck driver for yelling offensively at a supervisor, continually ignoring requests to leave the workplace and responding aggressively towards a sales employee. Prior to the dismissal, the employee had a familiar relationship with the directors (the family who ran the business).
Evidence was provided to the FWC by both former and current employees, which supported the position that the employee was known for being difficult to deal with and that he made others in the workplace feel uncomfortable.
One particular former employee stated that the employee often called him “arrogant, smarta***, dumba***, a c***”, and that he had threatened to “give him the Ivan Milat treatment”. The former employee stated that this behaviour had become normal in the workplace and that over time he began to feel unsafe around the employee, even after he had complained about the conduct and the employee had received a warning. The former employee stated that he eventually sought alternative employment because he felt the employer’s management could not protect him if the employee decided to physically harm him.
There was also evidence before the FWC that suggested that the employee would not often communicate his whereabouts when doing deliveries, and refused to take lunch breaks until after he had returned to the warehouse, even though he was encouraged to take them between deliveries.
On the day of the dismissal, the employee had returned to the warehouse following a series of deliveries and was immediately asked by a sales employee about the whereabouts of some arches. The employee did not have the paperwork and accordingly did not know where the arches were.
The employee then proceeded to take his lunch break but was then approached by his supervisor and questioned about the arches and his performance generally. The supervisor took exception to the employee’s “blasé” response and yelled at him to “go home and think about your job” and followed him around the warehouse telling him to “get out” on a number of occasions.
As the employee was leaving, he yelled to the sales employee to “F*** off! Go f*** yourself!” The supervisor then told the employee to “Get out of here! Go home!” The employee then yelled at the supervisor: “You can go and get f***ed! F*** off! Go f*** yourself!” The supervisor then told the employee that he was “done” and that he could not speak to others in that manner.
The employee did not deny that the conduct occurred. However, he argued that there were circumstances which resulted in him snapping on the day of the dismissal. He stated that he had been subjected to years of bullying and harassment, including swearing, belittling and the use of coarse, aggressive language towards him by his supervisor. He also claimed that his complaints had been ignored.
The FWC examined the employee’s allegations and, while satisfied that some of the alleged incidents occurred and that they may have contributed to further aggravating the employee, they were not sufficient to warrant the employee’s conduct on the day of his dismissal.
The FWC stated that the employee “is solely responsible for both his actions and his reactions”, which were unnecessarily abusive and inconsistent with his employment obligations.
However, the FWC found that the employer had failed to afford the employee procedural fairness in effecting the dismissal. In this regard, the employer’s approach to dealing with the employee on the day of the dismissal had been devoid of any fairness, noting that he was not notified of the reason for his dismissal or provided with an opportunity to respond.
For this reason, the FWC found that the dismissal was procedurally unfair and harsh in the circumstances. It determined to issue directions as to remedy at a later date.
The FWC also noted that the dispute in this matter was one that could have been avoided had the employer realised that it had outgrown its family operation and that it needed formal processes in place for dealing with inappropriate workplace behaviour. Instead, the employer failed to set parameters for or take reasonable action to manage the employee’s conduct and generally looked the other way. The FWC noted:
[The employer]’s complacency when it came to dealing with [the employee]’s outburst or what they describe as a “tolerance of [the employee]’s conduct” resulted not only in a young employee fearing for his safety but enabled the conduct to escalate to circumstances where other employees were subjected to unnecessary and unacceptable abuse.
LESSONS FOR EMPLOYERS
This decision highlights the importance of drawing the line between acceptable and unacceptable behaviour in the workplace and ensuring that employees are held accountable for behaviour that is inconsistent with those standards. Employers can face significant difficulty in relying on an employee’s unacceptable conduct and behaviour as a reason for dismissal if it is shown that such conduct and behaviour has been tolerated in the past.
This case also demonstrates the potential consequences of failing to properly manage employee conduct and behaviour in the workplace, as in this case, it placed the safety of other employees at serious risk.
VICARIOUS LIABILITY FROM SKYLARKING
Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.
Dangerous behaviour by colleagues can pose a serious risk to work health and safety and can breach the obligations that an employer owes to its workers and employees owe to each other. Where accidents and injuries occur, the results can be life altering for workers and very costly for employers, as demonstrated in the decision of Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371.
In that case, the worker concerned was a construction labourer employed through a labour hire firm. He was sent to work at a site under the direction and control of TRN Group (the Company) in Airds, NSW.
After lunch one day in April 2016, the worker was returning to his duties when the site supervisor, in an act of skylarking, wrapped the worker in a bear hug. The two lost their balance and fell. The supervisor landed with his weight on the worker’s leg and ankle.
The worker felt immediate pain and was assisted to a lounge on site where first aid was administered. The worker’s condition worsened and the supervisor drove him to hospital. At the hospital, the worker, who was in extreme pain, was given pain killers and his ankle was x-rayed.
After the x-ray, while they were waiting for the results, the supervisor provided the worker with a completed incident report. The supervisor told the worker they should record that the incident was an accident so they wouldn’t get in trouble. The supervisor read the contents of the incident report to the worker – he had written that the fall was the result of the supervisor tripping and grabbing hold of the worker in an attempt to break his fall. The worker signed the incident report, even though its contents were untrue.
The hospital x-rays showed that the worker had broken his ankle in the fall. He subsequently required three surgeries and underwent physiotherapy and rehabilitation. However, he was unable to return to his pre-injury condition or to his pre-injury role in the construction industry. During the course of his rehabilitation, he was advised by a rehabilitation provider to pursue employment in other industries. After a period of workers’ compensation payments, followed by light duties, the worker eventually gained employment in the security industry as an alarm monitor, a primarily sedentary role.
Despite the surgeries and other treatments, the worker never fully recovered from his injury and continued to suffer pain and restricted movement in his ankle. He eventually returned to the gym, but was forced to modify his exercises to account for his injury. The worker also suffered from significant scarring and scar sensitivity.
As a result of his injury and the ongoing impact it had on his career and his life, the worker brought a claim in negligence against the company alleging that it had breached its duty of care to him in the workplace.
The worker argued that the company had a duty to provide competent staff, a safe system of work and adequate supervision. The worker claimed that the company failed in this duty because it knew about the supervisor’s skylarking behaviour and failed to properly train or discipline the supervisor for his conduct.
The court ultimately found in favour of the worker noting:
It is well settled that an employer’s duty includes the removal of a source of danger to an employee posed by another employee who through his or her habitual conduct, poses a source of danger through skylarking or horseplay.
The court found that the company had actual knowledge of the risk of the supervisor’s skylarking because he had been involved in similar conduct with the worker in the past, and was the instigator of such conduct. Further, the supervisor was the company’s representative on the site and therefore his knowledge was the company’s knowledge.
The court found the company vicariously liable for the worker’s injury because the skylarking conduct that caused the injury was instigated by the company’s own supervisor, and the conduct was thereby impliedly authorised by the company.
The court ordered the company to pay $662,102 in damages to the worker for non-economic loss, past and future economic loss, past and future superannuation, and past and future out-of-pocket expenses.
LESSONS FOR EMPLOYERS
Employers have a duty of care to provide competent staff, a safe system of work and adequate supervision in the workplace. This includes ensuring that supervisors understand appropriate standards of conduct in the workplace, both from themselves and from other workers.
This article appeared courtesy of Workplace Law. Visit workplacelaw.com.au