Overview of the facts

The two excavator operators, a married couple, were employed on a casual basis for five years, typically working 50 hours a week. Before going on a period of leave, they were instructed to train two new labourers to operate an excavator so their roles could be covered during their absence. The labourers alleged during this time they were “bullied, harassed and badgered” by the couple and not given sufficient opportunity to learn to operate the excavator.

The supervisor received complaints from the two new labourers about the bullying and the labourers subsequently refused to work with the couple. During a series of text messages between the couple and the company director, one of the employees notified him of the couple’s intention to take a “mental health day” the following day, to which he replied “you will both be sadly missed.” One of the employees replied, “so are you sacking us” (sic), to which she received no reply. A week later, they received a text from their supervisor to say there was no work for them, and that they were welcome to come in for a meeting. The company then failed to respond to attempts by the employees to arrange a time to meet. The employees concluded that they had been dismissed and established a competing business. The company received an unfair dismissal claim from each member of the couple and lodged an objection on the grounds that the employees had not been dismissed.

The Decision

The Commission did not accept the company’s objection that it had not dismissed the employees. While the Commission noted the serious nature of the complaints made against the couple, it did not consider the company’s investigation to be significant enough to warrant dismissal. The Commission was critical of the company ignoring the employees’ attempts to communicate about the couple’s employment with the business and attempts to set up the in-person meeting. The Commission did not find a valid reason for dismissal as the investigation into the bullying complaint was within its “early stages” meaning it was impossible to soundly conclude misconduct occurred. Similarly, the business’ failure to respond to the enquiries of the employees was also a factor interrupting whether they were properly notified of the dismissal.

The Commissioner ordered compensation for the dismissal to a total of $2462 in wages and superannuation between the two employees.

Lessons for employers

Businesses need to take reasonable steps to investigate complaints made against employees. During this process employers should apply procedural fairness in both the investigation as well as any subsequent action, up to and including dismissal.

How we can assist

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals course to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Janet Watt, Graduate Workplace Relations Advice Line Advisor

[2019] FWC 4901