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In the first of a two-part blog series, we look at inappropriate conduct and behaviour in the workplace and the importance of dealing with problematic workplace behaviour.

In Thomas v The Commissioner for Public Employment [2022] FWC 2427, the Fair Work Commission (FWC) heard an unfair dismissal application lodged by a Northern Territory Farm Station Manager.

The employee was employed by the Northern Territory Government at the Victoria River Research Station, at which he also resided. His employment was subject to the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) and the Code of Conduct for the Northern Territory Public Sector (Code of Conduct).

In August 2020, in response to the employee’s grievance against his manager, the employer arranged for an investigation to be conducted into the grievance as well as the management and operation of the station, including employee’s performance and conduct.

In May 2021, the employee was advised that following the investigation, the allegations in his grievance could not be substantiated. In the same letter, the employer claimed that the employee had engaged in multiple breaches of the PSEM Act including but not limited to:

• using inappropriate language and displaying aggressive behaviour in a meeting with his manager;
• using insulting and derogatory language in a Facebook message about an employee;  
• fighting with two employees; and
• consuming alcohol and driving motor vehicles while intoxicated.

The employee denied the breaches. The employer subsequently commenced disciplinary action against the employee and the employee was ultimately dismissed from his employment.

Before the FWC, the employee claimed that the decision to terminate his employment was invalid and argued that the investigation process was flawed and conducted with the intention to dismiss him from his employment. The employee submitted that his dismissal came after he made a complaint against his manager and was the victim of reprisal action.

In relation to the specific breaches, the employee:

1. denied that he engaged in shouting behaviour towards his manager in a meeting and claimed that this was a “fabrication”;
2. stated that his message to the former employee were private conversations, were not work related, occurred outside of work and the employee also swore and used vulgar and disparaging language towards him;
3. denied that he would engage in drinking while on duty and operating machinery, submitting that the only time he would drink was outside of work hours and anytime he did consume a beer while in a vehicle, he was off duty and was not intoxicated;
4. submitted that in relation to the physical altercations:

• the first incident occurred while he was having beers socially in his backyard and he used reasonable force to restrain his colleague who was heavily intoxicated;
• the second incident occurred with another employee after celebratory work drinks where he became upset when the employee made disparaging comments about his partner; and
• he did not report the incidents as they occurred outside of working hours, it was important to maintain harmonious working relationships as they worked on an isolated station and that it was important that everyone “move on”.

The employer submitted that there was a valid reason for dismissing the employee which was based on the findings of the investigation report into the workplace culture at the station. The employer submitted that as a manager, the employee was responsible for setting the tone but instead his behaviour had encouraged a workplace culture that was inconsistent with the PSEM Act.

While noting that the investigation had some flaws, the FWC was satisfied that there were valid reasons for dismissal, being the employee’s physical altercation with another employee and his inappropriate and offensive language in the Facebook message.

In relation to the fight, the FWC found that while there were mitigating circumstances, including that the other employee was inebriated and he was provoked by him, he should have reported this incident to the employer but did not do so and instead lied about it and hid it from his manager.

The FWC stated at [113]:

The concept that men sort these issues out between themselves via the use of violence without repercussions is a throwback to a time portrayed in John Wayne movies from the 1950’s and 1960’s. This type of activity has no place in a sophisticated society like the Northern Territory, even if the workplace is 7 hours’ drive from Darwin on an isolated cattle research station. Violent behaviour cannot be condoned.

Similarly, the FWC noted that while society now accepted the use of swear words in conversation, it did not accept that the employee’s language could be justified as it was “the way we talk to each other in the bush”. The FWC held that the language used toward an employee was deliberate and serious and in breach of the obligation to treat persons fairly, equitably and with courtesy.

The FWC was satisfied that the employee was afforded procedural fairness. Accordingly, it found that the employee’s dismissal was not harsh, unjust or unreasonable and dismissed the application.

Lessons for employers

The FWC’s decision provides support for the principle that inappropriate workplace conduct and behaviour should not be tolerated in the workplace. Employers should address such behaviours or any misconduct as soon as they occur, particularly where employees in supervisory positions are involved. A failure to do so may give rise to psychosocial hazards, and in turn cause psychological harm.

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