Ten-year employee contests misconduct allegations, lacking direct witness statements
The Fair Work Commission (FWC) recently dealt with the case of a chef who was dismissed for allegedly harassing colleagues.
The case arose when the hospitality company terminated a long-serving employee based on reported incidents of aggressive behaviour toward co-workers.
The worker argued she was unfairly dismissed following false allegations of workplace harassment and maintained that her dismissal was the culmination of a pattern of workplace bullying she had experienced since making a workers' compensation claim.
She contended that the alleged incidents were mischaracterised and that she had provided alternative explanations for the events that were not properly considered by management.
Long-serving employee faces misconduct allegations
The employment relationship involved a chef with over ten years' service at a naval facility, where she had worked without significant disciplinary issues until 2024.
In January 2024, the worker received a first and final written warning following allegations that she had made offensive comments about supervisors and threatened to take action against management through human resources.
The worker denied these initial allegations and refused to sign the warning document, though she was required to undertake additional workplace conduct training.
During subsequent proceedings before the Commission regarding the disciplinary process, the employer agreed to "sunset" the warning, though parties disputed whether this constituted dismissal or withdrawal of the disciplinary action.
By September 2024, new allegations emerged involving incidents on 4 and 5 September where the worker was accused of aggressively confronting colleagues about workplace cleanliness and food preparation procedures.
These incidents allegedly caused distress to co-workers, with one employee reportedly requesting to leave work early due to embarrassment and intimidation.
Hearsay evidence forms basis of disciplinary action
The employer's case relied primarily on second-hand accounts provided by the site operations manager, who was not present during the alleged incidents.
His evidence described witnessing reports from affected employees about the worker's aggressive behaviour, including shouting at colleagues and causing them to feel embarrassed and harassed during kitchen operations.
No direct witness statements were obtained from the colleagues allegedly affected by the worker's conduct, nor were contemporaneous documents created to record the reported incidents.
The disciplinary process proceeded based on the operations manager's understanding of what other employees had told him about the events and their emotional responses.
The worker provided detailed alternative explanations for both September incidents, describing legitimate workplace safety concerns about food hygiene standards and cross-contamination issues that required immediate attention.
She maintained that her interactions with colleagues were professional attempts to address serious food safety violations rather than aggressive confrontations.
Disciplinary process involves multiple procedural steps
Following the September allegations, the worker was provided with formal notification of four specific misconduct charges and invited to attend disciplinary meetings with support person representation.
The process was delayed when the worker made additional bullying complaints against management, leading to the removal of the original investigating manager from proceedings.
A replacement regional manager continued the disciplinary process, conducting response meetings where the worker denied the allegations and provided alternative accounts of events.
Despite her denials and explanations, management concluded that the harassment allegations were substantiated based on the available evidence.
The worker was offered opportunities to provide written responses and attend show cause meetings, though she ultimately declined to participate in some sessions, citing health concerns and stress.
She obtained medical certificates indicating unfitness for work due to anxiety, though these were not provided to the employer during the relevant period.
Commission finds evidence insufficient for misconduct finding
The FWC determined that the employer's reliance on hearsay evidence was insufficient to establish that misconduct occurred, particularly given the serious consequences of such findings for the worker's employment.
The Commission noted that the only person who provided direct evidence about the September incidents was the worker herself, whose account was not substantially challenged during proceedings.
The decision emphasised the problematic nature of basing dismissal decisions on second-hand reports of how colleagues allegedly felt about interactions, without obtaining direct statements from those individuals or corroborating evidence.
The Commission found it inappropriate to accept hearsay accounts over the testimony of someone who was actually present during the disputed events.
The FWC rejected the employer's arguments about establishing a pattern of aggressive behaviour, noting that previous incidents either lacked proper documentation or involved disputed circumstances that could not reliably support current misconduct findings.
The Commission concluded that valid reasons for dismissal had not been established on the available evidence.
Worker's service history supports unfair dismissal finding
The Commission considered the worker's substantial service history of over ten years with minimal disciplinary issues as a significant factor weighing against the dismissal decision.
The FWC noted that apart from the disputed 2024 incidents, there was no evidence of ongoing performance or conduct concerns throughout her lengthy employment period.
The worker's regional location and age were additional factors considered relevant to the unfairness of the dismissal, particularly given the challenges of securing alternative employment in smaller communities.
The Commission found these circumstances compounded the harsh impact of termination based on unsubstantiated allegations.
The decision concluded that the dismissal was harsh, unjust, and unreasonable due to the absence of valid misconduct reasons and the disproportionate response to unproven allegations against a long-serving employee with a generally satisfactory work record.
Compensation ordered rather than reinstatement
The Commission determined that reinstatement was inappropriate given the breakdown in employment relationships and the worker's stated views about the workplace culture and management practices.
The FWC noted that the worker's assertions about management conduct and her description of a "psychosocial toxic environment" made re-establishing effective working relationships difficult.
Using established compensation assessment methodology, the Commission estimated that the worker would have continued employment for at least one year but for the unfair dismissal.
The FWC considered her expressed intention to remain with the company long-term, similar to other employees with extended service histories.
The provisional compensation award of 20 weeks' pay plus superannuation reflected the serious nature of dismissing an employee without valid reasons, though the exact quantum required further evidence about remuneration rates and statutory compensation caps to finalise the order.
