To join or not to join: Employee found to have bullied co-worker to join union not unfairly dismissed

Bullying complaints can often be difficult to manage and investigate, particularly when they involve allegations about the exercise of a workplace right to join or not join a union.

In King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017] FWC 3867, the Fair Work Commission (FWC) considered an unfair dismissal application where an employee was dismissed after it was found that he bullied another employee about joining the union.

Mr King was employed by Concept Wire Industries (the Employer), a family owned business with 25 employees. On 17 October 2016, Mr King attended a meeting with an official of the Australian Manufacturing Workers Union (the Union) where the election of a site delegate was discussed. Mr King, a union member, expressed interest in becoming the delegate and sought to encourage others to attend the meeting.

A few days after the meeting, an employee lodged a complaint against Mr King, alleging that Mr King engaged in behaviour that made him feel threatened, intimidated and bullied. The employee claimed that Mr King approached him on four occasions pressuring him to join the Union with the threat that if he didn’t he would “find a way to sack him” and would isolate him from others.

Mr King denied the allegations.

The Employer undertook a preliminary investigation and then determined that a formal external investigation should be conducted.

The external investigator interviewed a number of employees and, although there were no witnesses to the interaction, found the allegations to be substantiated based on the strength of the evidence from the employee. The Employer terminated Mr King’s employment due to misconduct based on his behaviour toward the employee.

In the FWC, the employee gave evidence that he was anxious about his interactions with Mr King and that Mr King knew that he was fearful about losing his job. Mr King denied the allegations and submitted that he spoke to many employees about the Union meeting and that his interactions with the employee about the Union were brief.

In considering whether the termination of Mr King’s employment was harsh, unjust or unreasonable, the FWC firstly considered whether there was a valid reason for the dismissal. The FWC had regard to a number of matters including that:

  • Mr King had workplace rights to assist the Union in the workplace and approach the employee (even more than once) to persuade him to join the Union using reasonable conduct;

  • The employee had an “equally important” workplace right not to join the Union and the workplace right not to be subjected to workplace bullying;

  • The Employer had an obligation to ensure a safe workplace which was free from workplace bullying and an obligation to act upon complaints of bullying it received; and

  • The external investigation was meticulous and balanced and was used by the Employer when considering terminating Mr King’s employment.

The FWC found that there was a valid reason for dismissing Mr King and that, procedurally, the termination of Mr King’s employment was fair. Accordingly, the unfair dismissal application was dismissed.

Lessons for employers

This decision highlights to employers:

  • Employees do not have to join or not join a Union nor should they feel pressured or intimidated to do so.
  • The obligation on employers to prevent or respond to complaints of workplace bullying.

  • An external investigation may be required where serious or complex allegations are made.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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