“Fast 5 – Dismissal Update”

Case 1 – Private Social Media Posts[1]

• An employee was dismissed following an investigation into allegations that the employee had accessed and engaged in posting and sharing offensive and inappropriate content within private Facebook groups involving current and former employees of the company.

• The worker acknowledged that some of the material should not have been shared and that he did so on the understanding it was a personal and private forum. The worker argued that his conduct was not within the scope of his employment.

• The Commission noted the Facebook group existed independently of the workplace in the sense that there was a connection other than the members simply being work colleagues, who were all social media contacts. The members of the Facebook group were consenting men who were voluntarily members.  No complaint was made about the content of the post by any employee of the company.  

• The Commission held the dismissal was unfair, on the basis the posts were made in a private social media forum and disconnected to the employment.

• Employer appealed to the Full Bench.

• The Full Bench dismissed the appeal and held the Fair Work Commission did not err in finding the conduct (even though offensive) was not within the scope of employment relationship.

Case 2 – Dismissal after Complaint[2]

• A worker alleged he witnessed and was subjected to unprofessional behaviour from the CEO, including racist remarks and profanity, on an ongoing basis from the commencement of his employment.

• The worker sent an email asking the CEO to refrain from the conduct, following which the CEO conducted a review of the worker’s performance.  

• Following receipt of the review report, the CEO terminated the worker’s employment.

• The Court held the dismissal was unlawful and in breach of the General Protections provisions.  While the Court accepted the that the worker’s poor performance was a reason for this dismissal, it was found that the complaint also formed a substantial and operative reason for the CEO’s decision to dismiss. There was evidence that prior to the complaint the worker and CEO worked together cooperatively and without conflict, which materially changed after the complaint.

Case 3 – Compensation for Injury suffered Working from Home[3]

• The employee was caring for her daughter’s new puppy while working from home. 

• The employee tied the puppy to a post outside her home so that she would not be disturbed while working.  The employee, when checking on the puppy, was injured when intervening to protect the puppy from an attack from a neighbour’s dog.

• In finding that workers’ compensation was payable, the Personal Injury Commission upheld an earlier finding that the worker’s act in temporarily ceasing her work duties to intervene in the dog attack was "a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances".

Case 4 – ‘Men are not Angels’ – Frustrated manager not a Bully[4]

• Several delivery employees of FedEx alleged they had experienced bullying by their shift supervisor manager including yelling, abuse, belittling, undue criticism, intimidation, and threats.  The workers made a “stop bullying application” to the Fair Work Commission.

• The Commission was required to assess whether the various allegations about the manager’s behaviour could amount to unlawful bullying.

• In finding that the manager had not bullied the workers, the Commission noted:

o   the common thread in the workers’ allegations was that the manager was calling them to account for their actions: in most incidents he was either moving the workers on to do their job or directly asking them what they were doing;

o   the allegations of yelling, abuse and the like could be more readily accepted if at least some of the directions or instructions were unreasonable.  There was evidence of only a small number of instructions that were prima facie unreasonable.

o   the Commission was not satisfied that by his words or his tone the manager yelled, abused, belittled, intimidated, made undue criticism or threats, or any other bullying behaviour towards any of the workers;

o   the Commission was prepared to assume that the manager gets “exasperated” from time to time with the workers, given the managers attempts to “hustle” the drivers out of the station and onto the road as soon as possible each day, as well as to manage operational variables and challenges while dealing with resistance, disrespect and defiance sometimes directed towards him from the workers;

•  The Commission noted: “[133] If on some occasions Mr Bradley’s tone revealed his exasperation, Mr Bradley’s attempts to supervise the Applicants could still be reasonable management action undertaken in a reasonable way. In other words, it is appropriate to make allowances for some degree of exasperation or tension between managers and those whom they manage. In the same way that employers must apply the standards of men and not angels to their employees (Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 at 73-4), managers and supervisors are also entitled to some latitude when the Commission assesses whether their management action was done in a reasonable way.”

 Case 5 – Constructive Dismissal[5]

• An administration officer was placed on a performance improvement plan relating to data and appropriate use of equipment.

• The worker was subsequently advised that there were continuing concerns about his performance and that a new performance management plan would be implemented.

• The worker advised he would not be entering a further performance plan and that he would be resigning from his employment.

• The worker commenced an unfair dismissal claim, arguing that his resignation was a dismissal as he was forced to resign because of the performance improvement plan.

• The Commission found that the worker was not forced to resign. Rather, when faced with the possibility of further performance management, the worker made a voluntary choice not to participate in the process and instead brought the employment relationship to an end.

[1] Ventia Australia Pty Ltd v Martin Pelly [2023] FWC 907

[2]  Noonan v XYZ Security Services Pty Ltd trading as Advent Security Services [2023] FedCFamC2G 666

[3] Knight v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 587

[4] Zoran Momirovski, Anthony Douglas, Roberto Serafini, Peter Naumcevski, Matthew Egan [2023] FWC 3299

[5] Bashir v Calvary Private Health Care Canberra Limited t/as Calvary John James Hospital [2023] FWC 1969