Worker's threatening statements and bullying claims backfire in FWC case
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application involving a bus driver who was terminated following his conduct at a union meeting.
The case raised questions about workplace behaviour standards and the boundaries of acceptable conduct during workplace union activities.
The worker argued that his dismissal was unfair and constituted retaliation for making an earlier bullying complaint against another employee.
He contended that he was subject to differential treatment compared to other employees regarding the events at the meeting and that his termination was unjustified. The employer defended the dismissal by arguing it was based on serious misconduct.
The worker had been employed by a bus services company as a driver since March 2021. The company operates bus services throughout Sydney on behalf of Transport for NSW from various depot locations.
The worker was based at the Tempe Bus Depot, where he served as co-delegate for the Transport Workers' Union alongside another driver.
The employment relationship deteriorated following events at a union meeting held in the depot's meal room on 18 September 2024. The meeting was convened by the other co-delegate to inform members about increasing membership fees and announce that he would be the sole union delegate going forward. Union members were not aware of these matters before the meeting commenced.
The meeting occurred in three distinct parts, with the first and third sections captured on closed-circuit television footage and audio recordings made secretly by the convening delegate.
The recordings later became crucial evidence in the dismissal proceedings, despite initial disputes about their admissibility under New South Wales surveillance device legislation.
During the second part of the meeting, after the convening delegate had temporarily left the meal room, the worker addressed remaining attendees about the delegate's absence and work status.
Multiple witnesses provided conflicting accounts of what was said during this unrecorded portion of the meeting.
The worker maintained he only explained that the delegate had suffered an accident and was on workers' compensation, information he claimed was already common knowledge throughout the depot.
However, other witnesses testified that the worker disclosed more sensitive details, including that the delegate was suffering from mental health issues and that his driver licence and authority had been suspended.
The FWC found that the worker had indeed told the meeting about the delegate's accident, workers' compensation status, mental health condition, and licence suspension.
The third part of the meeting, which was audio recorded, captured heated exchanges between the worker and the delegate when the latter returned to the meal room.
The worker made several aggressive statements, accusing the delegate of bullying and intimidation whilst addressing other attendees about workplace unity and power dynamics.
The audio recording captured the worker making multiple confrontational statements, including telling the delegate: "what [the delegate] is doing is nothing more than bullying, intimidation and harassment of me" and "I've got evidence left, right, and centre of him bullying me and today I will be filing a case in Fair Work Commission of a stop bullying order against [the delegate]."
The worker also challenged the delegate by saying "Put your balls on the line" and repeatedly addressed him as "Kid."
The FWC noted the worker's conduct became increasingly provocative, stating he would take the delegate before the Commission where the delegate would "get caned."
Despite these threats and claims of having extensive evidence, the worker never actually filed any bullying complaint against the delegate and admitted during proceedings he had no intention of doing so.
Following complaints received after the meeting, the employer started a formal investigation. The acting operations manager reviewed closed-circuit television footage and collected statements from employees identified as reliable and independent witnesses. The worker was issued with a notice to attend a disciplinary interview on 3 October 2024.
The worker initially refused to participate in the disciplinary interview, citing concerns about one of the participants' involvement in other proceedings he had started.
After preliminary discussions, the worker was stood down with pay whilst the investigation continued. On 9 October 2024, the employer issued a show cause notice outlining the allegations and requesting detailed explanations.
The worker's written response denied disclosing personal details about the delegate and maintained he had acted respectfully throughout the meeting.
He claimed any information shared was already common knowledge and that he had not engaged in bullying, harassment, or intimidation. The employer conducted additional meetings before making the final termination decision on 21 October 2024.
The FWC examined whether there was a valid reason for dismissal under the Fair Work Act 2009. The Commission considered both alleged instances of misconduct: unlawful disclosure of confidential information and aggressive, intimidating behaviour towards the delegate during the meeting.
Regarding the confidentiality allegations, the FWC found the information shared was largely common knowledge among depot staff.
The Commission noted: "there was general discussion or 'water cooler talk' throughout the yard about [the delegate's] situation" and accepted that some details may have been embellished but concluded the employer had not demonstrated how this constituted unlawful disclosure of confidential information.
However, the FWC found the worker's confrontational behaviour during the third part of the meeting provided a valid reason for dismissal. The Commission stated: "[The worker's] conduct was unreasonable and intimidatory, and constituted harassment of [the delegate] under clauses 4.2 and 4.3 of the Respectful Workplace Behaviours Policy." The FWC particularly criticised the making of false bullying allegations, noting: "the public way in which he falsely accused [the delegate] of bullying, intimidation and harassment to be more serious than had he made those allegations quietly in a complaint to management."
Despite finding a valid reason for dismissal, the FWC identified significant procedural problems in how the termination was conducted.
The Commission found the worker was not properly told about the specific conduct that formed the basis for dismissal, particularly regarding his aggressive behaviour during the third part of the meeting.
The FWC noted: "[The worker] was not notified of the valid reason, nor provided with any opportunity to respond to that reason prior to the termination of his employment. These factors weigh in favour that [the worker's dismissal] was harsh, unjust or unreasonable."
The employer's show cause process had focused on different aspects of the worker's conduct rather than the specific behaviour the Commission ultimately found provided valid grounds for dismissal.
However, the FWC concluded that despite these procedural shortcomings, the seriousness of the worker's conduct outweighed the procedural failures. The Commission stated: "these procedural deficiencies are outweighed by the valid reason for dismissal and the gravity of [the worker's] conduct."
