Tuesday, 20 January 2015

Sacking One Half Of A Feuding Duo Not Considered Unfair

Employers often feel as though their hands are tied when dealing with conflicts between co-workers in the workplace. Genuine attempts at mediation and conflict resolution between them largely do not work, or do not address the underlying problem – with the conflict reappearing a couple of months down the track. These skirmishes not only make it uncomfortable for the employees themselves and their surrounding colleagues, but often affects workplace efficiency and output throughout due to the distracting nature of the beast.

The Full Bench of the Fair Work Commission (FBFWC) has acknowledged that a workplace conflict had placed an employer in an “impossible position, irrespective of who was at fault” and held that the dismissal of one of the two workers in dispute was not harsh, unjust or unreasonable.

Case study: Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners

Ms Lumley and Ms Cook worked for Bremick Fasteners (Bremick) in a small office. They had been engaged in a year long feud, with the breakdown in their relationship having a “direct impact upon the efficient and appropriate performance of their work functions including their relations with Bremick’s clients”.

A mediation was held by their manager, Mr Jamieson, during which work procedures were set in place which directed them to refer any difficulty they had directly to him in the first instance as opposed to taking it up with each other. Both workers were also issued written warnings regarding their conduct in the workplace.

However – unsurprisingly – further issues arose between them, with Ms Lumley ultimately receiving a final warning in September 2013 which stated that “if significant improvement in your conduct is not achieved your employment may be terminated”. In February 2014 a further incident arose between the workers, with Ms Cook directly challenging Ms Lumley, in contravention of the procedures. After speaking with Ms Cook, Mr Jamieson spoke with Ms Lumley. Whilst he had no intention of dismissing her, Ms Lumley reacted negatively in the meeting provoking Mr Jamieson with comments such as “what are you going to do about it, you should just go ahead and sack me then”, “go ahead then sack me now, just sack me now” and “just do it, sack me”. In response to this, Mr Jamieson called a witness into a meeting and proceeded to dismiss Ms Lumley.

Ms Lumley subsequently filed an unfair dismissal application, claiming that it should have been Ms Cook who was dismissed. However, the FBFWC held that “the making of a finding attributing primary responsibility for the conflict was simply not required in order to determine whether there was a valid reason for the dismissal and whether the dismissal was unfair”.

The FBFWC found that whilst isolated one-off events would not have warranted termination, and that “Mr Jamieson perhaps acted unwisely in acting to dismiss Ms Lumley in the heat of the moment, nonetheless the continuance of the conflict between Ms Lumley and Ms Cook left him in an impossible position, irrespective of who was at fault”.

Ultimately, it was held that “the valid reason for the dismissal was not Ms Lumley’s conduct as such, but rather the existence of an interpersonal conflict in a small workplace which had reached the point where it had become incapable of any resolution and was affecting the performance of work”.

Lessons for employers

Employers should take appropriate pro-active measures to address workplace conflict to ensure that employee conduct does not amount to bullying, discrimination or otherwise. Whilst sacking one of the feuding employees may not always be found to be unfair, employers should ensure that each employee is accorded procedural fairness to avoid falling foul of the Fair Work Act.

If you require assistance on handling workplace disputes or require training to be conducted on appropriate behaviour in the workplace, please contact HR Legal.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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