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Perspective

Condonation costs employer who had valid reason

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)

Written by Nina Hoang

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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