Christopher Mulroney v Alfred James & Sons Pty Ltd T/A Alfred James Funeral Homes. (U2015/8433) [2015] FWC 6215. GOSTENCNIK, DP. 9 SEPTEMBER 2015

 

The Applicant was dismissed from his employment as a Funeral Consultant with Alfred James & Sons Pty Ltd) on misconduct grounds related to an incident involving another employee, Ms Diane Sloan:

 

“At approximately 12:00 noon on 17 May 2015 the Applicant was observed by Ms Sloan to be walking past the office. Whilst doing so, Ms Sloan asked the Applicant what he was having for lunch. The Applicant said words to the effect that ‘I don’t know, what are the girls having?’ Ms Sloan told the Applicant that the other employees had left to get their lunch as they could not find the Applicant. According to the evidence given by Ms Sloan, the Applicant:

 

  • Exploded and said “I can’t believe they couldn’t find me, I’ve been in the cottage cleaning my a*se off while you’ve been sitting around doing nothing” and he pointed his finger at Ms Sloan and said that she was the worst offender;
  • became louder, pointing his finger and speaking so quickly that Ms Sloan could not understand all that he was saying;
  • looked menacing and very angry and Ms Sloan felt intimidated; and
  • then stormed out of the office.

 

According to the Applicant, he was offended and hurt at being excluded by the staff members and that this was one incident too many. He said that whilst he waved his finger at Ms Sloan it was not in a menacing fashion but rather it was his habit to use his hands whilst expressing himself.

 

The DP found that the dismissal was not unfair and that his application should be dismissed, finding that:

 

  • The Respondent has…a number of workplace policies including a Code of Conduct and a Workplace Harassment and Bullying policy. These policies were signed off as acknowledgement by applicant.

 

  • During the proceedings the Applicant displayed a tendency to play down his responsibility for many of the events which were the subject of evidence, including his failure to accept reasonable propositions put to him by the Respondent during cross-examination about the abusive nature of the content of emails sent by the Applicant and Facebook posts made by the Applicant following his dismissal. This affects his credibility.

 

  • A HR consultant was brought in to investigate the matter. Her notes and subsequent e-mails represent a contemporaneous record of the events.

 

  • The Applicant’s conduct …was inconsistent with the Respondent’s workplace harassment and bullying policy and in breach of its Code of Conduct.

 

There were prior incidents:

 

  • The first is involving the unauthorised use of the Respondent’s motor vehicle. The Applicant was counselled in relation to this conduct which he acknowledged.

 

  • The second incident a final warning given to the Applicant arising from that which was described as “defaming comments about the company and management to another staff member and threatening physical violence to a manager. Later that same day during a telephone discussion between Mr Murray and the Applicant, about the Applicant’s access to a suit, Mr Murray gave evidence that the Applicant became quite aggressive and shouted and swore at him.

 

  • It is clear that the Applicant was upset during the telephone discussion and that he swore. Such conduct in a work environment or dealing with co-workers is inappropriate all the more so when the conduct occurs during a conversation with one’s manager. I am satisfied on the evidence that the final warning given to the Applicant in relation to both of the aforementioned incidents was an appropriate response and was justified.

 

  • I have also taken into account that the Respondent seems to have shown earlier tolerance of misbehaviour that might in and of itself have founded a valid reason for dismissal.

 

  • I have also taken into account the vitriolic emails sent and Facebook posts made by the Applicant following his dismissal. These demonstrate that the Applicant accepts no responsibility for his conduct and has little regard for the impact on others of his words and actions. The emails and Facebook posts reflect poorly on the Applicant.

 

Commentary

 

Going by these decisions, it would appear that committing the crime without contrition is basis for a fair dismissal. Of course, in both cases procedural fairness was followed, and we know that the second that the employer had in place important policies that the applicant had signed off.

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.