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Condonation costs employer who had valid reason

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Condonation costs employer who had valid reason

27 July 2020 by Nina Hoang

In another case confirming the laws of condonation, the Fair Work Commission has determined that an abusive worker was unfairly dismissed, even though he had a history of aggression which led to another employee resigning out of fear of the worker.

The truck driver had been dismissed due to his aggressive behaviour, he had refused repeated lawful and reasonable directions to leave the warehouse and yelled “go f#ck yourself” at a colleague and told his director “you can go and get f#cked. F#ck off. Go f#ck yourself.” Commissioner Harper-Greenwell held that while there was a valid reason for the dismissal, it was unfair and harsh.

Directors of the Chad Group Australia Pty Ltd had a familiar relationship with the employee and had a history of not keeping the employee’s aggressive behaviour in check:

  • The employee had been aggressive to many others before and complaints had been largely ignored by the employer
  • Because he was “somewhat difficult to deal with, management generally looked the other way when it came to his conduct”
  • The employee’s inappropriate behaviour included violent threats against another worker, who subsequently resigned because the employer did nothing to stop the behaviour. Instead Chad Group simply told the complainant to give the abusive employee ‘some space’

It was clear that the Directors only deemed the behaviour misconduct when it was aimed at themselves. In the meantime they had allowed “unnecessary and unacceptable abuse” towards their other employees.

As the Directors had become complacent and tolerated the previous inappropriate behaviour by the employee, it meant there had been no parameters for managing his unacceptable conduct. By doing nothing they were seen to condone his actions. For that reason it was unfair to terminate him for the same behaviours which they had previously permitted.

Key lessons

  • Every employee must be treated the same – if they all do the wrong thing, they must be punished in the same way otherwise it will not stand up;
  • Always manage each and every instance of misconduct, if you do not, you will have trouble terminating the employee later because you are condoning that behaviour!
  • Do not allow any employee to place others in danger – you have risks under safety law if you allow this behaviour to go unchecked

Case reference

Meredith v Chad Group Australia P/L [2020] FWC 1467 (13 July 2020)

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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