Paying the Price: Employee required to pay employer’s legal costs after losing unfair dismissal case

The Fair Work Commission has ordered a former cabin crew supervisor to pay his ex-employer’s legal costs after rejecting settlement offers and then losing his unfair dismissal claim. The case provides a useful illustration of an employer successfully recouping costs under Fair Work Act provisions where an employee has rejected a reasonable offer to settle. Continue reading

Significant and systematic micromanaging valid reason for dismissal

The Fair Work Commission has upheld an employer’s decision to dismiss an employee who engaged in “significant and systematic micromanaging” of his employees.  The employer dismissed the employee following a workplace investigation, on the basis that he had engaged in breaches of relevant workplace policies regarding bullying and harassment.

Complaints

Several employees working under the supervision of the employee made complaints. A number of complaints related to specific incidents, including that the employee had responded to an employee’s group email publicly with “why did you send this?” and had then spoken to the relevant employee about the email in an aggressive and threatening tone. Other aspects of the employee’s micromanaging included that he had limited employees’ contact with internal and external stakeholders by requiring permission to speak to stakeholders, started attending internal stakeholder meetings with employees (who had previously attended meetings alone), and required employees to complete onerous tracking and other administrative tasks.

Micromanagement had the effect of bullying

The employee did not dispute the contents of the complaints, but rather their characterisation as bullying behaviour.  The employee claimed that the relevant employees had not raised these issues with him directly prior to making a formal complaint and that he had been unaware that his behaviour had an adverse effect. 

The Commission found that despite the possibility of the employee being “well-intentioned”, the cumulative effect of his conduct and behaviour was one of significant and systematic micromanaging that breached the employer’s Code of Conduct, and bullying and work, health and safety policies. 

The decision indicates that an employee’s intention may not be relevant in considering whether conduct is bullying.  Rather, the Commission will consider the impact of the behaviour in question on affected employees. 

see Carroll v Karingal Inc [2016] FWC 3709

Costs awarded against drug-test employee who doctored doctor’s report

The Fair Work Commission has ordered an employee to pay his employer more than $18,000 in costs after ‘doing a runner’ from his own unfair dismissal hearing when it emerged that he had manipulated a doctor’s report to hide a positive drug test.

The employee was dismissed from his job as a truck driver after a routine workplace drug and alcohol test showed positive results for amphetamine and methamphetamine.

The employee brought an unfair dismissal claim in the Fair Work Commission. Whilst giving evidence under oath, he stated that he went to his doctor immediately after the workplace drug test and submitted a urine sample which tested negative. The employee attached to his witness statement a copy of what he claimed was his doctor’s report showing the negative result.

The doctor who collected the urine sample was called to give evidence before the Commission.

The doctor told the Commission that the test results attached to the employee’s witness statement were not those which the doctor had provided, and that the original document (which he produced) in fact showed a positive result.

The employee left the courtroom during the doctor’s evidence and did not return. The proceedings were discontinued.

The employer subsequently applied for costs. The Commission found that the employee’s case was premised on fabricated evidence and a lie given under oath, and noted that:

“The lie was so central to the unfair dismissal remedy application that when it was uncovered as a lie during the proceedings, the case crumbled and the [employee], to use the colloquial, “did a runner” leaving his representative to clean up the mess and discontinue the proceeding.”

The Commission ordered that the employee pay the employer’s full costs (i.e. ‘indemnity costs’) of $18,618.31.

Mr James Green v Toll Holdings Ltd [2016] FWC 2790

Sobering effects of terminating for breach of alcohol policies

The Fair Work Commission has upheld an employee’s application for unfair dismissal following a positive blood alcohol test at work. 

The employee, a maintenance worker, underwent a pre-work blood alcohol test.  His blood alcohol content first showed at 0.013%, and 0.006% some 30 minutes later.  The employee was stood down for the day, and his employment was terminated summarily 4 days later for breach of the company’s zero-tolerance Drug and Alcohol Policy.

Whilst the employee argued that his blood alcohol readings were low and still within legal limits to drive a B-double truck, Commissioner Bissett considered this as a rather dismissive attitude towards workplace health and safety on the part of the employee. The Commissioner also acknowledged that the incident was a clear breach of the Company’s zero-tolerance policy which required employees to present to work with 0.000% blood alcohol.

However, the employer relied upon other grounds to terminate, namely an earlier first and final warning for a safety breach, which the Commissioner found to have been inappropriate.  Also in issue was the fact that the employee did not appear to have been given an opportunity to respond to all of the matters being considered in respect of the decision to terminate, including the prior warning. Accordingly, where the first and final warning was found to have been harsh in the circumstances, and given the nature of the readings in question, the Commissioner found the dismissal to have been unfair.

The employee was not reinstated but was awarded compensation of $11,507.16.

The FWC has been increasingly willing to confirm the appropriateness of dismissals for breach of zero-tolerance work health and safety policies (see an earlier post on this topic at: Summary for breach of employer drug policy not unfair).

However, this decision suggests that, despite the existence of zero-tolerance drug and alcohol policies,  employers should still consider the appropriateness of dismissal for a “first offence”, particularly for otherwise lawful, low level breach.

Ingham v Metro Quarry Group Pty Ltd [2015] FWC 6472 (29 September 2015)