By Mike Toten Freelance Writer

In a case that examined the issue of what amounts to “creating an unsafe work environment”, the Fair Work Commission (FWC) has held that summarily dismissing an HR General Manager who in some ways mistreated her co-workers was disproportionate to the gravity of her conduct.

 

Facts of case

The employee had recently returned to work after a four-month absence (supported by medical certificates) triggered by a dispute with a co-worker. The return came with a medical recommendation that she not work longer than her contracted working hours. She was dismissed after the employer claimed that her conduct breached its bullying/harassment policy and created a serious risk to the health and safety of her HR team co-workers. The alleged conduct included:

  • Refusing to provide the HR Operations Officer with her own office and making her sit facing away from co-workers in an open-plan arrangement.
  • Openly criticising that employee’s work in front of co-workers.
  • Directing the HR Operations Manager to dismiss other HR employees without giving a reason. This followed the Operations Manager telling her that the other employees had complained about her. 
  • Regularly being in “a highly emotional state” at work, making co-workers feel they were “walking on eggshells”. 
  • During a dispute with the HR Coordinator, she became angry and aggressive, which the employer described as “unreasonable and unprofessional”. 

 

In one incident the FWC regarded as significant, the employee had asked the HR Coordinator to wait until another team member could join their meeting before discussing a dispute about extra work duties, but the Coordinator refused to wait and continued to criticise the work team. This led to an outburst in which both women raised their voices.

The employee admitted to “grumbling” about matters while in the office “to relieve stress”, but denied criticising co-workers or ordering their dismissal. She claimed that concern about the Israel v Palestine war contributed to her emotional state, as did exhaustion from overwork, and other factors.

The employer counter-claimed that her misconduct was exacerbated by her lack of insight and refusal to take any responsibility. Using the war as an excuse was evidence of that. 

 

FWC’s view of the evidence

The FWC found that the employee’s conduct “fell short of the reasonably expected level of professionalism” by raising her voice and publicly criticising other employees. However, the situation escalated after the incident in which the employee lawfully and reasonable directed the HR Coordinator to wait for another employee to join their meeting. Both of them had then raised their voices. 

Otherwise, in relation to other alleged incidents, the employer had either acted opportunistically or cast slurs on her character (eg claiming she used the war as an excuse). There was insufficient evidence that she demanded that other HR team members be dismissed.

The employer had misappropriated  the use of the word “unsafe” to describe the workplace. Employees may have been generally dissatisfied, but the workplace was not dangerous, as the employer had implied. 

The FWC found that the employee had not told the HR Coordinator to dismiss the other employees, although they did discuss a possible HR Department restructure.

 

Decision

Taking its view of the evidence into account, plus the employee’s previously unblemished 7-year record (including three promotions), the FWC found that dismissal was a disproportionate sanction. A performance review or management plan, a warning, and/or some coaching would have been more appropriate, with the FWC suggesting that the employer should have provided greater support to help her cope with her latest promotion. 

Compensation for the employee will now be subject to a directions hearing.

 

What this means for employers

There is an old line that employees keep being promoted until they reach their level of incompetence. Regardless of whether that could have been the case here, the lesson is that when employees are promoted, management should provide resources and other support to ensure they have the opportunity to deal with the challenges their new job may pose. Otherwise, dismissal of an employee who had performed well in lower-level jobs may be found to be unfair.

Conversely, it was argued in this case that more employees would have resigned if the HR General Manager had not been dismissed. The lesson for management here is to be proactive – provide an environment in which honest feedback is encouraged from all sides and acted on before the situation escalates out of control.

 

Read the judgment

Heidi Black v Baker Heart and Diabetes Institute [2024] FWC 3291 (28 November 2024)