FOMODA: Fear of Missing Out on Disciplinary Action

The Fair Work Commission (the Commission) has often held that a dismissal will be found to be harsh, unjust or unreasonable when one of the reasons for the termination of employment included an event which occurred earlier and which was not addressed at the time. This is encapsulated in the concept of “use it or lose it”.

Where employee misbehaviour or misconduct occurs, it should be addressed immediately in the workplace, if it is not, the employer is seen to have “lost” or waived the opportunity to take corrective disciplinary action.

The Commission has used the same approach when considering whether an employer’s disciplinary action was bullying or reasonable management action carried out in a reasonable manner.

In Ms Belinda Brown v Park Beach Bowling Club Limited; Ms Kelly Walcot and Mr Grant Walden [2017] FWC 896, the employee claimed that she was bullied by the Park Beach Bowling Club (the Club) management. She claimed that she was treated unfairly and subjected to inconsistent disciplinary action.

The employee was employed as a casual food and bar attendant by the Club and made a number of allegations that she was bullied. In particular, the employee alleged that she was subjected to unreasonable actions by the Club when it investigated complaints from two employees against her. One complaint concerned an allegation that in October 2015 Ms Brown commented “Maybe I have to put on 80 kg before I can get recognised for an award” about another employee who received a recognition award from the Club.

The Club first received this complaint in October 2015 and it was investigated over the course of November 2015. The employee was advised a number of times between February and May 2016 that the investigation did not find that she made the comment, so no action would be taken against her and that the matter was closed. Despite advising the employee of this, in October 2016, the Club issued the employee with a warning letter in relation to making inappropriate and insulting comments toward the other employee.

The Commission was critical of the Club’s actions in issuing a warning letter to the employee having earlier told her that no further action would be taken. The Commission held that the Club’s decision to issue the employee with a warning letter relating to an incident which occurred nearly twelve months earlier was unreasonable and was not reasonable management action carried out in a reasonable manner.

Despite this finding in relation to the warning letter, the Commission dismissed the employee’s other allegations of unreasonable behaviour by the Club and found that the Club acted reasonably toward the employee. Accordingly, there was no repeated unreasonable behaviour toward the employee. The Commission found that the employee had not been bullied at work and dismissed the application.

Employee misbehaviour should be addressed at first instance and should not be left to be addressed at a later time. Certainly a disciplinary process would be very likely to be considered unreasonable if an employer firstly advised an employee that no disciplinary action will be taken only to (much) later, with the “fear of missing out on taking disciplinary action”, issue the employee with a warning.  

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.

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