Abusive employee not given a 'fair go'

Cases

Abusive employee not given a 'fair go'

A WA plant operator who was unrepentant about wilfully and deliberately abusing fellow employees has won four weeks compensation after the AIRC found his employer failed to give him a 'fair go' in its dismissal procedures.

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A WA plant operator who was unrepentant about wilfully and deliberately abusing fellow employees has won four weeks compensation after the AIRC found his employer failed to give him a 'fair go' in its dismissal procedures.

Background

The employee, a team leader-grader operator employed by the Shire of Wiluna, applied under s.170CE(1)(a) of the federal Workplace Relations Act 1996 claiming that his dismissal was harsh, unjust or unreasonable. The Shire of Wiluna is located in an isolated area of WA, approximately 1,000 kilometres to the north east of Perth. It employs 11 people.

The allegations made against the employee by the shire were that he had used offensive and abusive language, made a racial slur towards another employee over the UHF radio system, performed poorly, made unauthorised use of a shire vehicle and bullied employees under his authority.

The employee received his first warning after six months in his job after he engaged in an angry discussion with shire management about the use of a contractor. A month later, while the employee was on leave, the road crew supervisor advised the shire that staff and contractors would leave the site if the employee returned to work. The main reason given was that he abused staff and contractors on site. The employee was asked to a meeting to respond to the allegations and was dismissed the next day.

The shire noted that while there were issues with the employee’s work performance, it was his conduct that lead to his dismissal, 'not so much his performance'. It said he was employed as a team leader, but lacked the ability to lead a team because of his inappropriate response to situations.

It also argued that because he was working in a remote location, he was required to act in a manner which did not require supervision and which was conducive to good team morale. His comments to and about other colleagues were viewed inappropriate, racist, confrontational and demeaning. The employee acknowledged making the comments but did not show any remorse towards his bullying conduct. He also did not acknowledge that he had been in the wrong or commit not to do it again.

Findings against employee

Commissioner Thatcher found that, taken cumulatively, the employee’s actions had constituted misconduct such that they were sufficient to be a valid reason for terminating his employment.

The commissioner said the racial slur made over the UHF was deliberate and wilful and his words 'went beyond the limits of abusive language towards a colleague that might be expected from a frustrated outburst'.

Similarly, his abuse of the contractor was also deliberate and wilful and was made with the intention of being detrimental to or undermining the relationship between the shire and its contractor. He said it was conduct inconsistent with the need for the employee, as part of his team leader role, to maintain a working relationship with the shire's contractor in the context of a small crew operating in an isolated environment.

Commissioner Thatcher went on to find the employee had made a deliberate effort to conceal using the shire’s vehicle for private purposes. He said the actual use of the shire vehicle to follow his wife when her car broke down would not contribute to a valid reason for his termination. 'However the deceptive conduct is a contributing factor to a valid reason, as it was destructive to the level of trust and confidence between the shire and [the employee] that he act responsibly, given that [he] was a team leader in a remote location with minimal supervision.'

Not 'fair go'

The commissioner, however, concluded that the employee did not receive a 'fair go' when presenting his case against the allegations because his manager had already made up his mind that the employee should be dismissed.

Commissioner Thatcher also found the shire had failed to clearly warn the employee about his performance prior to its decision to dismiss him. He found performance factors had played a more dominant role in the dismissal than the shire had indicated in its evidence. 'By omitting them, the shire failed to give [the employee] a "fair go". This consideration goes in favour of a finding that the termination was unfair and unreasonable.'

The commissioner said that while the shire was a small employer, it had significant resources to draw on in the form of the WA Local Government Association and so had no excuse for not providing procedural fairness.

Commissioner Thatcher said he was satisfied that the employee’s dismissal was harsh, unjust or unreasonable. However, he limited compensation to four weeks pay after finding that due to the employee’s difficult work relations he was unlikely to have been in the job for more than another month.

Thomas Ashworth v Shire of Wiluna - AIRC - PR951247 - 26 August 2004.

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