I want it that way: FWC upholds dismissal following obstructive and uncooperative conduct of employee and union rep

Where a disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present. We have discussed the role of the support person in previous posts. A support person can include a friend, family member, an impartial colleague or a union representative.

The presence of a support person or a representative affords the employee a degree of procedural fairness whereby they can turn to a trusted individual for guidance or support on the matters in issue. However, support persons or representatives can derail disciplinary processes, often to the detriment of the employee they are trying to assist.

This was the case in Anson v Western District Health Services [2018] FWC 2132 where an employee’s summary dismissal was upheld following her failure to respond to serious allegations or attend meeting to discuss those allegations, largely as a result of the union representative she sought to act as her representative.

The employee was one of two nurses who allegedly fell asleep whilst on duty in June 2017. The nurses were discovered asleep in the employer’s resident’s lounge at a time when they were responsible for 10 residents and seven acute care patients.

Following this incident, a meeting was scheduled for the employee to respond to the allegations but before the meeting was convened, the employee claimed that her union representative was unable to attend on the nominated date and so the meeting was cancelled.

Numerous further attempts were made to schedule a meeting to allow the employee the opportunity to respond to the serious allegations against her.

These attempts were frustrated by the employee’s insistence that she be allowed to bring a particular union representative to the meetings. This particular union representative had essentially been banned from the employer’s premises for work health and safety reasons resulting from her conduct towards other of the employer’s employees. Multiple employees had complained to the employer about the bullying and aggressive conduct of the union representative on previous occasions.

Significantly, the employer’s HR manager said that she would resign rather than be subjected to the union representative’s conduct.

As a result, the employer informed the employee that it would not permit the union representative to enter its premises but advised the employee that she could be represented by any other union representative.

The employee and the union representative argued that it was not for the employer to dictate who could and could not act as the employee’s representative.

The employer claimed the work health and safety risk posed by the union representative’s presence in the workplace meant that it was acting responsibly in refusing her as the employee’s representative.

The stalemate reached between the employee (and the union representative) and the employer resulted in the employee failing to respond to the allegations against her and failing to follow the employer’s reasonable and lawful directions to attend a meeting about the allegations or put her responses in writing.

The employee was subsequently dismissed, some five months after the incident.

In response to her dismissal, the employee lodged an unfair dismissal claim alleging that she was not asleep on the job and she was not afforded due process because she was denied the representative of her choice. Under the Fair Work Act 2009 (Cth), one of the criteria for assessing whether a dismissal is unfair includes whether the employer unreasonably refused to allow the employee to have a support person present.

The FWC considered first whether there was a valid reason for the employee’s dismissal. The FWC preferred the evidence of the employer’s witnesses and found the employee had most likely fallen asleep on the job, endangering patients and residents, and had also failed to follow the reasonable and lawful directions of her employer by failing to respond to the allegations against her. Both of these reasons for dismissing the employee were held to be valid reasons for dismissal.

The FWC then examined the process followed by the employer in implementing the dismissal and the conduct of all parties involved in the events leading up to it.

The FWC was critical of the union representative and commented that she “attempted to stymie the disciplinary process by being obstructive” and contributed to reducing the employer’s attempts at due process to a “farce.”  The FWC also commented:

It is case study of how not to behave. I hope and expect that there is no recurrence of such event, and it is [the union] which is responsible for improving behaviour.

The FWC was also critical of the employee’s conduct in the disciplinary process and noted that the difficulties the employee was experiencing as a result of the termination of her employment were of her own making.

Ultimately, the FWC held that, “The employer made reasonable endeavours to afford the applicant due process, while the applicant and [the union representative] were obstructive and uncooperative.” Accordingly, the employer was found to have acted reasonably in all the circumstances and the employee’s dismissal was found not to be unfair.

The FWC dismissed the employee’s application.

Lesson for employers

Where an employee’s support person or representative in a disciplinary process poses a risk to those in the workplace because of their conduct, an employer will be within their rights to prevent that person entering their premises.

In this case, the union representative was so problematic for the employer that it reasonably refused to permit her come to meetings. The complaints from other employees about her aggressive conduct, including the HR Manager advising she would rather resign than have to deal with her, were so extreme that the risk posed by her presence outweighed the employee’s preference for her to act as the employee’s representative.

The case is good authority for the position that unreasonable conduct from a union representative or other support person should not be tolerated by employers, who are required to take the necessary steps to ensure employees’ health, safety and welfare at work.

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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