The Fair Work Commission (FWC) has found in R v Virgin Australia Airlines PtyLtd [2023] FWC 1501 that an employee had a pattern of behaviour of making false and/or exaggerated complaints about his colleagues and that this created a risk to their psychosocial safety.
The Applicant was employed in the Pit Crew for Virgin Airlines Australia Pty Ltd (the employer) performing baggage handling duties until he was summarily dismissed from his employment in December 2022 on the grounds of serious misconduct.
The events leading to the Applicant’s dismissal arose from an incident which occurred in September 2022. On 3 September 2022, the Applicant was driving an aircraft pushback vehicle when a near miss incident occurred with another pushback vehicle driven by another employee. The Applicant filed an incident report alleging that the driver of the other vehicle was disoriented and distracted, lacked situational awareness and recommended that the employee undergo a Drug and Alcohol Management Program.
When the employer investigated the incident, the other employee maintained that he did nothing wrong but rather it was the Applicant who had deliberately driven into his blind spot. This account was ultimately supported by witnesses to the incident. The employee claimed that the Applicant was trying to get him in trouble and that other employees did not want to work with the Applicant because they were concerned that he would file safety reports against them.
This incident occurred against a background of the Applicant making regular complaints about other employees from about June 2021. The reports were initially informally addressed as being incidents of miscommunication, however, the reports became more bizarre and serious such that the Applicant’s managers were concerned that he was reporting incidents which were unfounded or exaggerated.
The employer commenced a formal investigation against the Applicant in relation to the pushback vehicle incident as well as the pattern behaviour displayed by the Applicant, alleging that he:
Following the investigation process, the employer concluded that the allegations had been substantiated and a disciplinary process was commenced against the Applicant. At about the same time and before he was dismissed, the Applicant lodged a general protections claim and an application for orders to stop bullying in the FWC.
The disciplinary process ultimately resulted in the Applicant being terminated from his employment. He subsequently made an unfair dismissal application in the FWC.
Beforethe FWC, the employer maintained that the Applicant was not unfairly dismissed and that there were five valid reasons for dismissal relating to the Applicant’s conduct which included the substantiated allegations and that the Applicant had engaged in dishonesty.
Commissioner McKinnon considered each reason for dismissal.
In relation to the pushback vehicle incident, Commissioner McKinnon ultimately found that the Applicant deliberately drove into the path of the other vehicle and was satisfied that this amounted to serious misconduct as his actions created a risk to health and safety. She also noted that the Applicant’s account was inconsistent including in relation to what direction he was travelling in and when the incident occurred.
In relation the false reports, Commissioner McKinnon examined each report lodged by the Applicant from June 2021 and the evidence available. The reports made by the Applicant variously included:
Commissioner McKinnon was satisfied that the Applicant’s reports were false and/or were exaggerated, with some reports being completely unwarranted, unfounded and having no rational foundation. In particular, she noted that in relation to one incident, the Applicant had deliberately made a false report against an employee.
Commissioner McKinnon also accepted that the Applicant had reported to another employee that he was going to “play” with the Employer and considered his actions to be consistent with this.
In relation to the Facebook messages, the evidence showed that the Applicant sent a Facebook friend request to a younger female employee and subsequently sent her constant unsolicited messages and friend requests. The Applicant claimed that he did not send them, his young son did, or that the messages were inadvertently sent to the employee and were intended for others. However, Commissioner McKinnon did not accept the Applicant’s responses, finding them to be implausible and that his conduct “bordered on workplace sexual harassment”.
Given her findings, Commissioner McKinnon was also satisfied that the Applicant was not honest with the employer in his responses to the allegations.
Commissioner McKinnon concluded that there were valid reasons for the Applicant’s dismissal and that the employer had undertaken a fair process.
In particular, Commissioner McKinnon was satisfied that the Applicant had engaged in a pattern of behaviour which was inconsistent with his duty to act honestly and to treat others with respect and courtesy. Commissioner McKinnon found that the Applicant had undermined the employer’s Just Culture system by making false and inaccurate reports. She stated at [188]:
The making of false and/or exaggerated reports about other operators and leading hands was not only likely to undermine the trust of his colleagues, but also created risks to their health and safety, including psychosocial safety.
Accordingly, it was determined that the dismissal was not harsh, unjust or unreasonable and the unfair dismissal application was dismissed.
As noted by the FWC in Pastor [2019] FWC 257, “It is a characteristic of the human condition that, from time to time, work colleagues do not get on harmoniously”. However, employees are expected to treat their fellow employees with courtesy and respect.
For employers, a disharmonious workplace poses a risk to the workplace culture and could lead to poor workplace relationships and conflict that create psychosocial risks, including workplace bullying and harassment. This decision supports an employer’s action to take disciplinary action against an employee whose conduct creates a health and safety risk to other employees.
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