Fair Work upholds workplace bullying dismissal

The employer said the manager's behaviour was 'plainly unwarranted'

Fair Work upholds workplace bullying dismissal

The Fair Work Commission has upheld the dismissal of a senior manager at Calvary Public Hospital following workplace bullying and harassment allegations.

Hospital following workplace bullying and harassment allegations. In April 2019, the applicant, then director of medical imaging, was issued with a notice of investigation after two allegations were made by a wardsman and a nurse regarding his behaviour.

The first allegation referred to an instance in which the applicant repeatedly blamed the wardsman for failing to check a patient’s ID before a procedure when it was ultimately the applicant’s responsibility to do so. The second submitted that the applicant had intimidated the wardsman and nurse by staring at and questioning them about the first complaint.

An external investigation confirmed the allegations of workplace bullying, contrary to the hospital’s code of conduct and the applicant’s employment conditions. After responding to the findings, the applicant was dismissed in February 2020.

The applicant contended that there was no valid reason for his dismissal. He further submitted that the external investigation was first-hand hearsay and should therefore be excluded from the Commission’s consideration.

The Commission dismissed this argument, admitting the external investigation on the basis that it was conducted in an appropriate manner, was based on reasonable grounds, and provided the applicant with a reasonable opportunity to respond.

The applicant also asserted that his dismissal was harsh because it was “disproportionate to the gravity of the misconduct”. The respondent rejected this, citing its zero-tolerance approach to bullying, and submitted that the applicant’s behaviour was “plainly unwarranted” given his senior leadership role.

The respondent also raised the fact that the applicant was not the wardsman’s supervisor, he had conceded responsibility for the patient’s identification, and there was a significant power imbalance between himself and the wardsman in support of its arguments.

The Commission agreed with the respondent, describing the applicant’s behaviour as “highly inappropriate” and finding that the reasonable person would consider it “humiliating and intimidating”.

Satisfied that this constituted a valid reason, the Commission held that the dismissal was not unfair.

Key Takeaways:

  • Many companies take a zero-tolerance approach to bullying and harassment, included in enterprise agreements, codes of conduct and other policies
  • Workplace bullying and harassment may constitute a valid reason for an employee’s dismissal

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