Reoccurring conflict is not grounds for dismissal unless…

by Catherine Gillespie

This blog looks at what can we learn from a Fair Work Commission decision dated 5 December 2014. The case was Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners (C2014/5516).

Reoccurring conflict between the same two parties may be grounds for dismissal if all reasonable steps have been taken to resolve the matter underpinning the conflict, but the conflict is continuing.

All reasonable steps would include:

  1.  Investigating any allegations of personal behaviour or systemic issues which may be contributing to the conflict and then appropriately addressing the substantiated allegations and any recommendations arising from the investigation;
  2.  Conducting a mediation which produces an agreement which all parties to the mediation can be performance managed against. This agreement should include steps to address the issues said to be fuelling the conflict, such as uncertainty about work procedures and reporting lines, as well as setting the expectation for appropriate workplace behaviours and the required complaints handling process to be followed if issues do arise;
  3. Written notification to the parties to mediation that a failure to abide by the mediation agreement may result in disciplinary action being taken, including dismissal; and
  4. Conducting a performance management process (as part of a disciplinary process) if the mediation agreement is breached or the conflict continues. This process should include an appropriate, realistic improvement plan and warnings should the required improvement not be evident within the specified time frames.

If, after taking all of these steps and the continued conflict is directly impacting on the efficiency and effectiveness of the performance of either party, the performance of the business, the wider relationships with stakeholders to the business, or there is evidence the conflict may bring the business into poor favour with clients, dismissal is less likely to be viewed as unfair, unjust and unreasonable.

Of course, the Fair Work Commission would expect that organisations of a certain capacity will have the resources to appoint an external experienced mediator or investigator and that the organisation would seek appropriate professional advice regarding performance management and termination of employment.

If your business would like assistance with any of the steps noted in this blog, contact us at WPCR or call 1300 227 901.

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