No adverse action: sacked for defying CEO, bullying

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No adverse action: sacked for defying CEO, bullying

A company director’s claim that his dismissal involved unlawful adverse action has failed. The court confirmed that unacceptable behaviour, including bullying of junior employees, made him a liability to the company.

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A company director’s claim that his dismissal involved unlawful adverse action has failed. The court confirmed the director’s behaviour, including bullying of junior employees and failure to comply with directions, had made him a liability to the company.

[Full text of this case: B v D Ltd (No 2) [2015] FCCA 345 (19 February 2015)]

Director not a team player


At a company providing aged-care services an email was sent to all staff and board members in August 2012 making adverse allegations against JB, the director of residential care.

Although JB was part of the senior management team, he had a habit of acting independently – making management decisions without following protocol..

After the unauthorised email had been circulated and JB had been excluded from the investigation, he nevertheless approached junior staff about who might be involved in sending the email. He also issued disciplinary letters to staff at one of the facilities and held five disciplinary meetings with staff.

In September 2012, the Australian Nursing Federation called the HR manager to raise concerns that staff had felt threatened and bullied in the disciplinary meetings with JB and that proper processes had not been followed.

Termination of employment


At a meeting in October 2012, the CEO and a company lawyer gave JB a letter stating that his contract of employment was terminated with three months’ notice and he was not required to fulfil any duties during the notice period.

The reasons for his dismissal were unsatisfactory personnel practices. Unacceptable behaviours included bullying of junior employees and defiance of the CEO and of the board’s investigation. The CEO was also concerned about the effect of JB’s behaviour on the management team and the risks his actions posed for the company.

JB applied to the Federal Circuit Court, alleging adverse action in contravention of s340 and s352 of the Fair Work Act 2009.

Was it adverse action?


JB argued the employer had taken adverse action against him within the meaning of s342 of the Act.

The mentioned instances included: the company lawyers’ investigation into the allegations in the unauthorised email; the meeting where the CEO said JB needed to convince him he should remain employed; the directive to attend the meeting where his employment was terminated; the recommendations by the company lawyers and the board that he be dismissed; and the actual dismissal.

He also claimed his absence from work due to illness since 12 September 2012 had been part of the reason for his dismissal.

Failure to comply with directions


After examining the evidence, the court was not satisfied the CEO’s direction to JB to attend a meeting with the investigators or the CEO’s meeting with him in September 2012 had been adverse action. Similarly, the court was not satisfied the report by the company lawyers – although it had been damaging to JB – had recommended JB be dismissed. There had been no contravention of s340 of the Act.

The court was, on the other hand, satisfied that JB’s behaviour and his failure to comply with directions had made him a liability to the company. However, the board’s recommendation had not been for prohibited reasons under s340 of the Act.

In addition, the court was not satisfied a reason for the termination was JB’s temporary absence from work because of illness, within the terms of s352 of the Act.

As there had been no contravention of s340 or s352, the court dismissed JB’s application.

The bottom line:  Employees have responsibilities to act in a fair and reasonable manner and breaches of the manner noted in this case can amount to a reasonable decision to terminate services.

B v D Ltd (No 2) [2015] FCCA 345 (19 February 2015) 

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