Brendan Cassar v All Traffic Management Services Pty Ltd T/A All Traffic Management Services Pty Ltd (U2015/2670) [2015] FWC 5123. JOHNS, C. 31 JULY 2015

  • The Applicant submitted the dismissal was harsh, unjust or unreasonable because the events leading to his dismissal were motivated by his view of the Respondent’s failure to address an incident in which his motorbike had been tampered with while being parked on the Respondent’s premises.
  • The Applicant then attempted to contact a colleague, Paul Roffey, who the Applicant was “fairly certain” was responsible for the tampering, through various phone calls and a text message. The Applicant was terminated on following a complaint from Mr Roffey.
  • The conduct said to constitute bullying and harassment involved up to 21 phone calls being made to Mr Roffey’s mobile phone by the Applicant accusing him of tampering with his motorbike’s brakes and leaving a post-it note annotated with the term “shit-talker” on the vehicle whilst it had been parked on the Respondent’s premises.
  • The Respondent’s subsequently investigated the incident and found that Mr Roffey had not placed the note on the Applicant’s motorbike. The investigation, also found that people within the company who “did not want to work with [the Applicant]” on account of his engaging in “threatening” behaviour.
  • The Applicant subsequently participated in a telephone conversation with the Respondent to discuss the Incident and other misconduct. It was submitted that the Applicant’s “manner and the tone” during that conversation left her feeling “very disturbed”, particularly when the Applicant said he would deal with the situation “in his own way”. The Applicant categorically denies he made any such insinuation. Ms Lesha felt “very unsafe” during the conversation to the extent she advised the Applicant that the police would be called if he was to enter the Respondent’s premises. During that phone call, Ms Lesha terminated the Applicant’s employment. The dismissal took immediate effect.

The Commissioner found:

“Having heard and considered all the evidence in this matter… The Applicant:

(a) Made false accusations against a co-worker;

(b) Breached company policy and the terms of his employment contract by not reporting his complaint through the appropriate channels; and

(c) Engaged in what can only be described as highly inappropriate conduct by repeatedly calling Mr Roffey after work hours and through the night of 7 January 2015 and sending a menacing text message accusing him of wrongdoing.

The Commission concluded that:

  • The Applicant was notified of the reason for the dismissal, but only after the decision to terminate had already been made. [my emphasis]
  • The Applicant was not given an opportunity to respond to the reason for the dismissal.
  • The absence of any such dedicated HR management or expertise adversely impacted the procedures followed by the Respondent in effecting the dismissal.

Most importantly, the Commissioner:

“…is minded to conclude that the decision to terminate was not proportionate to the conduct [my emphasis] the Respondent submitted precipitated the dismissal.”

The Commissioner concluding that the dismissal of the Applicant was harsh, unjust or unreasonable, and therefore the dismissal was unfair.

In agreeing with the Respondent, the Commissioner submitted reinstatement would be inappropriate because of the Applicant’s behaviour, particularly in respect of his “bullying and harassment” of Mr. Roffey, had been inconsistent with its expectation that all employees “should feel they are working in a safe environment, and therefore ordered a payment of $1,022.09 by the Respondent to the Applicant.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.