I’ll get my people to call your people: Employee awarded compensation after employer sidesteps representative

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.

The Fair Work Commission (FWC) recently considered an unfair dismissal application that involved many of these factors. In Saunders v CSL Limited T/A CSL [2017] FWC 4188 an employee was dismissed, in part, for failing to adhere to his employer’s direction to attend a number of meetings. The reason that the employee failed to attend the meetings was that he didn’t know anything about them. 

The employee had been with his employer for less than two years when low level tension and conflict with his manager began. The manager claimed that the employee was underperforming and subjected him to a performance improvement process. Sometime later, the employee lodged a formal bullying complaint against his manager consisting of 19 allegations mostly relating to her criticism of him or to statements she had made about him.

The employer commissioned a third party to conduct an investigation into the bullying allegations which found that some of the allegations were substantiated, but not all. During the course of the investigation, a number of counter allegations about the employee surfaced which resulted in the employer inviting him to a disciplinary meeting.

The employer informed the employee that it intended to commence a disciplinary process but before it could proceed, the employee produced a medical certificate and left the workplace.

He initially engaged a law firm to represent his interests in the disciplinary process, but it ceased acting for him within a relatively short period. In its final correspondence to the employer, the law firm indicated that the employee would respond to the counter allegations personally in due course.

However, before the employer received any correspondence from the employee, he engaged a second representative who contacted the employer’s solicitor over the phone and suggested that the whole situation could end up as an unfair dismissal claim.

Following this call, various emails, text messages and letters were exchanged between the parties and their representatives. The most significant correspondence was a number of letters sent by the employer directly to the employee. These letters were sent to the employee’s home address and his representative was not copied or informed of their existence.

The letters contained requests, and eventually directions, for the employee to attend meetings with his employer about misconduct allegations and failing to properly claim sick leave. The final letter warned that the employee’s employment was at risk of termination.

During this period, the employee continued to be unwell and so temporarily relocated to his parents’ place meaning that he was not at his home address to receive the employer’s letters.

The employee was eventually dismissed for, amongst other things, failing to attend the meetings.

The main question for the FWC was whether there was a valid reason for the employee’s dismissal.

In this set of circumstances, the FWC found that there was not a valid reason and that the employee was unfairly dismissed.

The FWC held that the employer’s actions in bypassing the employee’s representative formed part of a “carefully constructed strategy” that enabled it to find him guilty of failing to adhere to a reasonable and lawful direction. The FWC labelled the employer’s conduct “opportunistic” and awarded the employee in excess of $25,000 in compensation.

Proving that communications requiring action have been received by an employee who is absent from the workplace often poses logistical difficulties.  In this case, the employee had a representative and communication to the representative could have avoided the issues agitated in this case about communications not being received. 

The method of delivery of communications to employees not in the workplace is an important decision – mail may not be received either at all or in a timely manner, email to a private email address in the absence of a “read” receipt may not be sufficient to prove the employee received the communication, a courier or someone delivering the communication in person may be seen as unduly intrusive.  Careful thought is required when communicating with absent employees, especially during the course of disciplinary proceedings.

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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