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What can employers do when employees pre-emptively commence proceedings

Managing disgruntled employees can often be a difficult and drawn out process. It may often also be difficult to see the path forward when an employee who is subject to management action seeks retaliation by lodging grievances or commencing proceedings against their employer.

Managing disgruntled employees can often be a difficult and drawn out process. It may often also be difficult to see the path forward when an employee who is subject to management action seeks retaliation by lodging grievances or commencing proceedings against their employer.

Recently, we assisted a client in dealing with an unfair dismissal application which had been lodged by an employee even though they had not been dismissed from their employment.

The employee’s manager emailed the employee setting out concerns with the employee’s performance and advising that the employee’s performance was unsatisfactory. The email set out expectations about the performance expected of the employee in the future.  

In response to the manager’s email, the employee lodged a grievance with the employer about the manager’s conduct and treatment. The employer sought the assistance of Workplace Law to conduct an investigation.

Despite the ongoing investigation process, the employee lodged an unfair dismissal claim alleging that they had been dismissed from their employment.

Workplace Law was able to assist by conducting the investigation and assist in resolution of the unfair dismissal proceedings.

It is not uncommon to see employees take this course of action.

For example, in Ms W (a pseudonym) [2022] FWC 1627, the employee lodged an anti-bullying application after concerns were raised with her about her performance. The employee’s manager had raised concerns about the employee’s performance during an annual performance review and then commenced an informal performance management process with the employee. The employer’s evidence was that during these meetings, the employee was argumentative, refused to acknowledge concerns about her performance and denied that there were any issues with her performance.

Following the initial informal performance review meeting, the employee sent an email alleging that her manager had engaged in inappropriate or bullying behaviours and advised that she had lodged a bullying application with the Fair Work Commission (FWC).

The informal performance management process was put on hold and the employer conducted an investigation into the bullying allegations. The investigation determined that the manager had not engaged in bullying behaviour. In response, the employee lodged a grievance in relation to the investigation and made allegations against the investigator. These allegations were found by the employer to be unsubstantiated.

In the FWC, the employee alleged that her manager had engaged in eight separate acts of unreasonable behaviour which amounted to bullying including setting unreasonable timelines, unreasonable treatment, exclusionary behaviour and micromanagement.

The FWC considered each of the allegations and determined that the manager’s behaviour was not unreasonable and rejected the employee’s bullying claim. In particular, the FWC endorsed the comments of Deputy President Sams in the matter of Karki [2019] FWC 3147. As we reported on in The Stalking Horse: FWC warns of abuse of stop bullying jurisdiction, DP Sams commented on the unacceptability of the use of the anti-bullying jurisdiction as a “shield or stalking horse” to delay disciplinary outcomes or to claim that a disciplinary process was bullying.

Lessons for employers

Unfortunately, there is often little that employers can do to prevent or stop an employee making a claim. The best defence for employers is to ensure that actions are undertaken in a procedurally fair manner to avoid any criticism of its actions.

Workplace Law can assist employers to navigate the path out of complex employment disputes or claims by employees in a pragmatic way. If you require assistance, please reach out to Workplace Law on (02) 9256 7500.


Information provided in this blog is not legal adviceand should not be relied upon as such. Workplace Law does not accept liabilityfor any loss or damage arising from reliance on the content of this blog, orfrom links on this website to any external website. Where applicable, liabilityis limited by a scheme approved under Professional Standards Legislation.

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