Unfair dismissal – recent outcomes*

Workplace Directions

Both applicants were unsuccessful in these recent unfair dismissal cases in the complex area of harassment and discrimination. The first was the perpetrator of prohibited conduct; the second, a victim.

Termination not considered harsh, unjust or unreasonable

The applicant was employed by ANZ Bank as a team leader in loans collections from 2 October 2006 until his employment was terminated for misconduct on 12 July 2012. The misconduct included breaches of the Bank’s equal opportunity policy and code of conduct by way of massaging female colleagues and inappropriate comments to staff.

The targets of the applicant’s conduct in breach of the policies did not give evidence that it caused offence. Two male colleagues indicated that the whole team joked that they were gay because they were such good friends and the applicant’s remarks in that regard did not worry them at all. Despite this, Deputy President Gooley did accept that the applicant had acted in breach of the Bank’s code of conduct. Prohibited conduct that is not offensive to those to whom it is directed remains prohibited, and may well be offensive to others.

In terms of the unfair dismissal claim, the question was then whether the substantiated conduct, when considered as a whole, provided a valid reason for the termination of the applicant’s employment.

The termination was not considered unjust in the context of the breach of policies over a number of years. It was not an unreasonable decision in circumstances where the applicant did not acknowledge any inappropriate conduct and resiled from previously admitted conduct. The only question to be decided was whether termination was harsh because the respondent had been aware of the behaviour and had taken no action to counsel, advise or retrain the applicant over a significant period of time and where the applicant’s direct manager himself did not lead by example.

Deputy President Gooley stated that had the applicant had any insight into the inappropriate nature of his conduct, the decision to terminate would have been considered harsh. However, with regard to the range of conduct and the applicant’s lack of insight, his application was dismissed.

Applicant’s resignation not considered constructive dismissal to enable unfair dismissal claim

The applicant (aged 19) was employed for 14 months as an assistant manager at the respondent’s business. The respondent asserted that she resigned her employment on 1 February 2013. The applicant asserted that she did not resign voluntarily but was forced to do so because of conduct on behalf of the respondent. That conduct was the requirement she perform unpaid duties, for example attending early to open the store, and sexual harassment and bullying by the store manager. The applicant alleged that when she complained of the manager’s conduct to the owner, he ‘laughed in her face’ and claimed that she had acted in a flirtatious manner and this was demonstrated by her body piercings and tattoos.

The applicant referred to the discrimination and harassment and management’s failure to respond as the reason for her resignation in the resignation letter drafted by her lawyer. She proceeded with an unfair dismissal claim alleging constructive dismissal with reference to section 386(1)(b) of the Fair Work Act 2009 (Cth) which provides that a person has been dismissed if the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

The owner gave evidence that he had responded to the applicant’s complaints by separating her from the manager. He was apparently continuing investigations and intended to move the manager to a different store in the meantime. This was frustrated because the applicant left work.

Two other staff members gave corroborating evidence that the owner undertook to conduct the investigation.

Senior Deputy President Richards did not accept the applicant’s claims that the owner dismissed her expression of concerns by laughing at her and referring to her flirtatious manner, tattoos and body piercings. This was on the basis that had he been so dismissive, he would not have reasonably engaged in subsequent steps to convene meetings with the staff and seek written statements about any issues they had about the manager’s conduct or behaviour. The allegations against the owner could not be reconciled with his actual known conduct.

It was noted that the applicant acted on the purported advice of a psychiatrist to not return to work due to her health.

It was held that the applicant was not forced to resign her employment because of the respondent’s conduct. The complaints she had made were being investigated. Also, she had another option, namely, to remain off work on a medical certificate rather than resigning. As she was not dismissed at the initiative of her employer, her claim for unfair dismissal failed.

Authored by Emma Reilly, Partner, Canberra.

* Mostafa Hassan v ANZ (U2012/11740); Danielle Barclay v Nando’s Springfield Lakes (U2013/6394)

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