'You're dead c**t': threats, theft and harassment justified sacking

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'You're dead c**t': threats, theft and harassment justified sacking

An employee was validly dismissed, the FWC has ruled, however the employer could have done more to support the worker when mental health issues emerged.

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While an employer could have done more when symptoms of an employee’s mental health condition emerged, its dismissal of him for threatening other employees, fraud, sexual harassment and other misconduct was justified.

The employee had provided little information about his personal circumstances at the time, so the employer’s reactions should be viewed in that context.

Facts of case


The employee was a sales assistant at a refrigeration company. He was dismissed for the following reasons:
  • threats to co-workers including one to a manager that included “you’re dead, c***”
  • theft of a laptop and damage of a mobile phone (both company property)
  • breach of the employer’s workplace health and safety policy
  • sexual harassment of a co-worker
  • using a company credit card without authorisation
  • failure to follow lawful and reasonable directions
  • unauthorised absences from the workplace and failure to attend off-site work appointments
  • failure to respond to allegations of misconduct
Prior to the above, he had an unblemished record for eight years. However, his manager began to notice him becoming more agitated and aggressive at work over a period of about four months. When he asked him if he was taking drugs, the employee said that he smoked marijuana, had recently been prescribed Valium, and had been in hospital the previous week after a mental breakdown.

After misusing a company credit card, he was put on a performance improvement plan. However, his conduct became more erratic, including several incidents occurring on the same day, and incidents that resulted in customer complaints. He reported his employer-supplied laptop had been stolen, but failed to notify the police as directed by the employer.

When the HR manager presented allegations of misconduct to him, he denied that the incidents had occurred and did not respond to a “show cause letter”.

He admitted giving very little information to the employer about his health and mental health condition and prognosis. The Fair Work Commission said this should be taken into account when assessing the employer’s actions. The original trigger of the symptoms was his domestic situation at the time (broke up with girlfriend).

The employee claimed that he resisted disclosing his condition for fear of harming his job security, and used “privacy” as a reason for not providing more information requested by the employer. He claimed that the employer failed to meet its workplace health and safety obligations when dealing with his mental health condition and return to work. He also claimed that the employer denied him procedural fairness.

The FWC said that when the employer became aware of his mental breakdown, it should have done more to support him, particularly as its own employment policy indicated that it would do so.

Conversely, it had given him considerable latitude in relation to his absences from work not supported by medical evidence.

When the employee returned to work, the employer issued a new employment contract for part-time work in a lower-level role. The employee thought it was a transitional role that would lead to resuming his former more senior job, but no guarantees or promises were made. The evidence was that the employee resented the demotion and believed that the employer had not provided enough support for his mental condition.

Decision


Although the employer could have done more to support the employee once his mental condition became evident, on balance the extent of his misconduct justified his dismissal. His conduct also posed a threat to the health, safety and welfare of other employees.

The FWC rejected the employee’s claim.

The bottom line: In this case, the gravity of the employee’s misconduct overrode the finding that the employer could have provided more support for his mental health condition. But arguably the situation may not have escalated to the same extent if it had provided more support.

This case illustrates the wisdom of training managers to be able to identify potential mental health issues with employees and to follow procedures that enable them to seek help (for example referral to an Employee Assistance Program or external counsellors).

Read the judgment

Brand v Beijer Ref Australia Pty Ltd [2019] FWC 5245, 13 August 2019



 
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