A Council employee was found to have engaged in serious misconduct for amongst other things harassing and being disrespectful to the HR manager.  In the decision of Stamoglou v Banyule City Council [2020] FWC 4722 (15 September 2020) (Banyule Council Case) an employee filed an unfair dismissal claim saying that the Victorian Council that he worked for – Banyule City Council,  unfairly dismissed him.

The Banyule City Council was confronted with the frustrations of a team leader over his perceived unequal treatment at work. However, the employee engaged in a number of acts of misconduct:

• Failure to follow a direction for health and safety – the employee refused to put on safety boots claiming he did not need to
• Breaching Council procedures – the employee had been placing bike parts from a Council truck into his own car for a couple of weeks
• Aggressive behaviour to another employee – the employee approached his supervisor in a very antagonistic manner in regards to details contained in a CRM to dispute store owner complaints.  The employee used very colourful and explicit language in a very aggressive manger when making his request
• Intimidating behaviour – the employee in a Council truck sat and watched the team leader in an intimidating manner. The employee then inexplicitly drove the Council truck towards the team leader before braking and narrowly avoiding him later saying he “should be thanking me that I didn’t hit him”
• Harassing and disrespectful behaviour towards HR – Over a nearly 5 hour period the employee sent 15 text message and 9 phone calls to the HR manager in regards to some of the behaviours above and in particular regarding alleged complaints he had made about the team leader – the language and tone used was aggressive, disrespectful and harassing in nature.

To add into the mix the Union that represented the employee at the time also claimed that the behaviour exhibited by the employee may be attributable to medical illness.

The Fair Work Commission found that the employee had engaged in serious misconduct and not surprisingly dismissed the application.  The overall intimidating behaviour by the employee and the “path of self destruction” could not be excused. 

Many clients recently have asked for advice for dealing with employees who are intimidating and causing toxic workplaces. Sometimes, just like the Banyule City Council Case, the actions of those employees can lead to workers compensation claims or harassment or bullying claims been made by other employees.  

So how does the Banyule Council Case help employers with some key learnings:

Learning 1 – Disrespectful And Intimidating Behaviour Is Not Acceptable

There seems to be a trend lately with clients and employers feeling that employees who engage in backbiting, white anting and rude behaviour is not enough to terminate an employee’s employment.  Of course there are times where there is some difficulty however this type of behaviour is unacceptable at any workplace.

This type of conduct if ignored can sometimes become the standard set in the workplace. Standards should be made quite clear to employees:

• Ensure policies are in place that set out the standard required
• Councils, in particular should take to review their Codes of Conduct
• Provide training to management on how to deal with intimidating and some might even say upward bullying behaviour (this article on upward bullying may be of help)

Learning 2 – A Show Cause Letter Has So Many Advantages

Dealing with potential misconduct requires investigation, however, an employer also needs to have grounds to take disciplinary action.  Putting allegations to an employee not only provides the employee with procedural fairness and natural justice but it also gives an employer the ability to obtain information.  In some respects you want to know “their side of the story”.  Without this perspective many employers have found themselves caught up in situations where there are reasonable and even plausible explanations for the infractions.

Need help with toxic employees? Contact NB Lawyers – Lawyers for Employers – we undertake and offer an obligation free consultation.  Reach out via service@nb-lawyers.com.au or +61 (07) 3876 5111 to book an appointment.

If you got value out of this article email service@nb-lawyers.com.au or click on this link to subscribe to our value added newsletter. 

Written By 

Jonathan Mamaril 

Director

NB Lawyers – Lawyers for Employers 

jonathanm@nb-lawyers.com.au 

+61 (07) 3876 5111 

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.  With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.