Bullying not a reason for dismissal if allegations are unfounded
In the case of Steven Biffin v XL Express Pty Ltd (2017), the Fair Work Commission (FWC) ordered an employer to pay about $50,000 in compensation to a manager it dismissed for bullying.
The manager was dismissed for serious misconduct when his employer asserted that he had engaged in workplace bullying and had wrongly denied being provided with training about workplace bullying when he was interviewed by a Workplace Health and Safety Queensland (WHSQ) Inspector.
The interview followed the suicide of an owner driver, which triggered WHSQ to conduct an investigation into the employer’s workplace.
The assertions of bullying were not based on the employer’s own findings, but rather a WHSQ Inspector’s verbal statement that the manager had bullied drivers. The employer did not conduct any of its own investigations.
Notwithstanding that the allegations were effectively based on hearsay, the employer presented the allegations to the manager as if they had been substantiated.
Further, the employer did not give the manager an opportunity to respond to the allegations, instead it presented them as though the decision that the manager had engaged in bullying had already been reached.
In the unfair dismissal hearing, the manager successfully argued that he had been unfairly dismissed.
In finding in favour of the manager, the FWC observed the “total denial of procedural fairness” that his employer had afforded him in the dismissal process.
The FWC noted that to assert bullying is a “serious allegation and one that should be based on cogent evidence”.
However, the employer had attempted to “abrogate” the manager’s right to procedural fairness by relying on hearsay evidence, when it “should have made its own inquiries and conducted its own investigations” to establish that the allegations were substantiated.
When terminating employment for serious misconduct, employers should always afford employees with procedural fairness, which means:
- basing any allegations on cogent and substantiated evidence;
- conducting thorough investigations; and
- affording the employee with the opportunity to respond to allegations put to them.
Simply relying on hearsay evidence of others will not be sufficient.
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