Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners [2014] FWCFB 8278, HATCHER, VP; GOSTENCNIK, DP; RYAN, C. Appeal against decision [PR553108] of Watson, VP U2014/5867

 

In this matter, the Full Bench dismissed the appeal, thereby upholding the original decision by Watson, VP that the employer did fall foul of the unfair dismissal laws in sacking one of the two employees who just could not play well together.

 

An overview being:

 

  • Ms Lumley was dismissed by Bremick on 3 March 2014 arising from interpersonal workplace conflict between her and another employee, Ms Nikki Cook, which had begun about a year before.
  • Ms Lumley and Ms Cook worked in a small office together, and the breakdown in their relationship had a direct impact upon the efficient and appropriate performance of their work functions including their relations with Bremick’s clients.
  • Ms Lumley made a formal complaint alleging bullying on the part of Ms Cook in July 2013, but after an investigation the complaint was concluded to be unsubstantiated.
  • The manager responsible for Ms Lumley and Ms Cook, conducted a mediation to try to resolve the conflict between them after the completion of the bullying investigation. This led to Mr Jamieson setting out work procedures which he expected Ms Lumley and Ms Cook to follow in order to avoid any conflict.
  • One of these procedures was that if either of the two employees encountered any difficulty with the other, it was to be referred to Mr Jamieson in the first instance for him to deal with rather than being taken up directly with the other employee.
  • The procedures were accompanied by written warnings to both Ms Lumley and Ms Cook that any failure to comply might lead to disciplinary action being taken including dismissal.

 

This did not succeed in resolving the conflict. Further issues arose between them, and Ms Lumley was given a further and verbal warning in August 2013. In September 2013, after yet another workplace altercation between Ms Lumley and Ms Cook, Ms Lumley was issued with a final written warning. The warning letter, dated 27 September 2013, stated among other things that:

 

“This is a final warning letter. If significant improvement in your conduct is not achieved your employment may be terminated. To reiterate, our expectation is that you comply with the mediation work practices as set out at the last mediation meeting 5th July 2013. Copy of these work practices attached.”

 

On 26 February 2014 there was a further altercation between Ms Lumley and Ms Cook. On Ms Cook’s own version of events, she was aggrieved because she believed Ms Lumley had performed a work function which was within her (Ms Cook’s) province. Ms Cook then directly challenged Ms Lumley about this, and an altercation followed which was then reported by a third party to Mr Jamieson. Ms Cook subsequently also went to Mr Jamieson and said that she thought she had no option but to resign, but Mr Jamieson dissuaded her from this course.

 

[After an investigation] Mr Jamieson then called a witness into the meeting, and proceeded to dismiss Ms Lumley with immediate effect. Bremick paid her one month’s salary in lieu of notice together with her accrued leave entitlements. Ms Lumley was successful in obtaining new employment within a few days, albeit at a somewhat lower rate of pay.

 

In relation to the question of whether there was a valid reason for the dismissal, the VP’ conclusion was:

 

“In my view, the reason for the dismissal was a valid reason and was soundly based on the conduct of Ms Lumley. The interpersonal relationships and the tension between the two employees and the comments they made to each other, if they were isolated one-off events, would not warrant termination of employment. However, as there was a course of conduct, repeated conduct, of a similar nature that arose from the friction between them, and clearly involved inappropriate conduct by Ms Lumley towards Ms Cook, in my view there was a valid reason for the dismissal.”

 

and

 

 

“… the issue of whether the reason for termination, which I found to be a valid reason, is nevertheless sufficient to terminate the employment in all circumstances of the case. In my view, it was open to the employer to take the decision to terminate Ms Lumley’s employment because of the view that Mr Jamieson took that the interpersonal situation was not improving…”

 

The Full Bench found:

 

“It is clear that the appellant would have preferred for there to have been a finding that Ms Cook was principally at fault in the conflict. However that was never on the cards because, firstly, the evidence adduced by both sides was far too superficial such as to permit the kind of micro-analysis of events that would have been necessary to make a finding of that nature, and secondly, the making of a finding attributing primary responsibility for the conflict was simply not required in order to determine whether there was a valid reason for the dismissal…”

 

Commentary

 

I think this was pretty much the answer I gave at the interview J. The Manager followed procedural fairness which is crucial in these matters.

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.