When can an employer say “enough is enough” in the context of bad behaviour?
In the recent Fair Work Commission unfair dismissal decision in Grant Rikihana v Mermaid Marine Vessel Operations Pty. Ltd this issue was examined. The Applicant’s employment was terminated after he swore at his leading hand who laughed at an issue raised in a hazard observation card that had been discussed at a pre-start meeting. Evidence was given that the card identified a workplace hazard as being the reflective strips on work shirts blinding forklift operators. The leading hand in question apparently stated “You can’t be serious. This is not a serious issue” and reportedly mocked the suggestion and laughed. In response, the Applicant apparently said, “You’re a d*ckhead. You are supposed to be a Leader of this group. You’re a c*ck”.
It transpired that the Applicant was on a final written warning for behavioural issues and had been counselled previously for swearing and aggressive behaviour. The Respondent had also recently released a Code of Conduct which sought to stop this type of behaviour, and change the previously prevailing workplace culture. The Respondent relied on this Code in part to terminate the Applicant’s employment.
In finding in favour of the Respondent, Commissioner Williams found that:
“(the Applicant’s) .. behaviour was a clear breach of the respondent’s code of conduct and was also a valid reason for his dismissal”.
It was argued by the Applicant that there were deficiencies in the disciplinary process employed by the Respondent against him. The Commissioner found that this was only one factor that needed to be taken into account in determining whether the termination was unfair. In this instance, the Commissioner found that the deficiencies did not deny the Applicant procedural fairness or make the process unfair.
Once again, this decision demonstrates the value of having clear policies in place when dealing with acceptable workplace behaviour. Not only can such policies assist in changing workplace culture, but they can be relied upon by employers to effectively discipline employees.
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