Bullying tactics: bullying allegations used as a tactic to direct attention away from an employee’s misconduct

It is not uncommon for employees to raise allegations against Employers in order to divert attention away from, or attempt to excuse their own misconduct.

In Trika v Home@Scope Pty Ltd [2022] FWC 749, the Fair Work Commission (FWC) has defended an Employer’s decision to dismiss an employee after he left his overnight shift early without authorisation.

The Employer managed and operated independent supported living facilities for disabled clients. The employee worked at a group home as a Disability Support Worker. 

In February 2021, the Employer commenced an investigation into allegations of misconduct by the employee, including that the employee breached its code of conduct and other policies by engaging in inappropriate behaviour towards residents. The allegations included that:

  • During one of his rostered shifts, the employee refused to help his colleague and left his shift early during the busiest time of the day. His departure left his colleague to attend to and take care of five clients alone, one of whom required one-on-one care at times.
  • During the same week, one of the residents expressed dissatisfaction with the employee stating that she didn’t want him coming back and that the employee would not let her leave her room for a cup of tea.
  • Other residents alleged the employee engaged in inappropriate restrictive practices including prohibiting some residents from leaving their bedroom before 7am and not allowing them to watch TV or listen to music.

In response the employee claimed that he was constantly bullied and harassed by his colleague and this was a significant factor contributing to his decision to leave his shift early.

The investigation concluded that the employee failed to:

  • follow all policies and procedures related to his employment;
  • carry out his duties;
  • comply with legislation; and
  • consider his own safety and the safety of the residents.

The Employer subsequently commenced a disciplinary process against the employee based on the investigation findings.

Although the employee disputed the allegations and the Employer was satisfied that the employee had engaged in serious misconduct and dismissed him.

Subsequently, the employee lodged an unfair dismissal claim.

In determining whether there was a valid reason for his dismissal, Deputy President Masson considered the significance of the employee’s conduct in leaving his shift early, in the context of the needs of the residents, noting that one of the residents was suffering from deteriorating health and needed one-on-one care at times.

DP Masson noted that the employee’s departure increased the risk to a group of vulnerable residents and the employee’s attempt at downplaying this risk suggested the employee did not grasp the gravity of his conduct.

In regard to the employee’s claims of bullying, he found that the credibility of those claims was undermined by the following:

  • no formal complaints were ever made prior to the incident;
  • it was not until the investigation was conducted that the employee provided a detailed list of instances of bullying; and
  • he had previously claimed that he had no issue with other employees.

While the employee denied raising the bullying complaints as a defence tactic against his conduct, DP Masson was unconvinced.

DP Masson was of the view that the employee “confected and exaggerated” his claims to excuse his own conduct which raised a question as to his credit and honesty as a witness.

After finding that the employee’s conduct in leaving his shift early established a valid reason for dismissal, and the disciplinary process undertaken by the Employer was procedurally fair, DP Masson dismissed the employee’s unfair dismissal application.

Lessons for employers

This case will be of some comfort to Employers when dealing with employees who raise their own counter allegations or grievances during a disciplinary process.

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.

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