Employer argues manager had to uphold code of conduct at all times
The Fair Work Commission (FWC) recently dealt with the case of a general manager who was dismissed after facing domestic abuse allegations from his co-worker, who was also his partner.
The employee, David Paul Lonnie, applied for an unfair dismissal remedy, questioning his dismissal from his position as the general manager of residential services with the WA Council on Addictions Incorporated, an organization committed to providing services that help individuals affected by alcohol and other drugs.
In his role, the worker held a position that was responsible for overseeing and directing the operation and development of the employer’s residential treatment services.
Manager’s dismissal over alleged misconduct
The worker was dismissed from his position due to alleged misconduct directed at a co-worker (“Person Impacted”). The termination letter dated 6 January 2023 mentioned serious allegations of bullying and harassment.
However, during the hearing, the employer clarified and provided evidence that the dismissal was a result of the following reasons:
“a) The [worker] was purportedly involved in serious breaches of the [employer]'s Code of Conduct, accused of committing domestic violence against the Person Impacted.
b) Additionally, the [worker] was found to have inappropriately utilized the [employer]'s resources, specifically his phone and laptop, to subject the Person Impacted to emotional abuse.”
Romantic relationship with the co-worker
The worker began his employment in November 2011. He became the employer’s general manager of residential services in May 2021. Later that year, he entered a romantic relationship with a co-worker (Person Impacted).
The worker described the Person Impacted as "dishonest, actively deceptive, verbally abusive, unable to apologise, extremely crazy-making and hurtful."
While the worker admitted to making some unpleasant remarks in response to the "continual cycle of dishonesty and betrayal" from the Person Impacted, he asserted that he never acted abusively toward her.
He believed he was continuously subjected to emotional abuse, betrayal, and gas-lighting, making it difficult for him to end the relationship.
In October 2022, the worker expressed his concerns to the Person Impacted regarding the potential damage to his reputation caused by her actions during her "abusive cycles."
According to records, as a precautionary measure, he half-jokingly suggested getting her acknowledgment of his non-violent behaviour in writing to protect himself. Several days later, the Person Impacted provided him with a letter, hand-delivered to his office, acknowledging that he was “not violent.”
Alleged domestic violence with co-worker
The worker testified that on New Year's Eve, the Person Impacted visited his place, and he said they were “intimate.”
The following morning, New Year's Day, the Person Impacted experienced a severe headache, vomiting, and eventually lost consciousness.
Alarmed by her condition, the worker called for an ambulance, and she was taken to one hospital and then transferred to another. Medical professionals informed him of the serious brain bleed she had suffered, and there was uncertainty about her survival. The Person Impacted underwent surgery to address the situation.
The worker then tried to focus on his work on 3 January 2023. However, he spoke to management and arranged to take leave from the end of the day.
Nonetheless, he was unexpectedly asked by his employer to attend the office the next day to discuss an issue with his company credit card, even though he was on leave.
During the meeting, the employer’s management informed the worker that the board had decided to terminate his employment. He was asked to hand over the keys to the company car and leave behind the company mobile phone and laptop.
They warned him that failure to comply would lead to further potential criminal charges. According to records, when the worker asked, “what other criminal charges she was talking about,” they told him: “domestic violence – you’ve got a problem.”
The manager’s ‘offensive’ text messages
Several staff members were aware of certain alleged incidents between the worker and the Person Impacted. A member of the management team was directly aware of the Person Impacted's allegations, having heard them from the Person Impacted herself.
The worker sent inappropriate text messages to the Person Impacted, expressing anger and frustration over their personal relationship. These messages were sent from his work phone and were later acknowledged by the worker as “ill-advised and disgusting,” including the following messages:
“You should be ashamed of yourself. I want to kick the shit out of you for what you did tow(?) by coming back still a liar and to attack me for catching you out. If you don’t come back and say sorry, like a human, at 10 tonight, I swear I will turn your life inside out, test me.”
“You are a liar. You could take a screenshot showing the date easy as. I’ll smash you if you lie again, cunt.”
“Honestly, keep coming at me with attitude and I’ll knock you out, cunt.”
Additionally, in one of the messages, the worker warned the Person Impacted “not to undermine him at work,” implying that their personal issues could impact their workplace interactions.
The Commission’s decision
In its decision, the Commission acknowledged that the case involved out-of-work conduct between colleagues, however, it said that it still involved employment matters.
“While the [manager’s] conduct of sending the offending text messages may have been engaged in out of hours, it can still properly be said to have a relationship to his employment. The Code of Conduct obliged him to ‘[r]efrain from any activity where personal or professional conduct is likely to compromise the fulfilment of [his] professional responsibilities’,” the FWC noted.
“The subject matter of such direction to the [manager] was appropriate given his position in the [employer's] organisation and the duties and responsibility of his role, in addition to the services that the employer provided to the community at large,” it said.
“This included the provision of residential care to vulnerable persons in society. It, therefore, constituted a lawful and reasonable direction, notwithstanding its regulation of the [manager's] personal activities.”, the Commission added.
Thus, the FWC said the employer had a valid reason to dismiss the manager. “By engaging in the conduct that he did, namely, the sending of the offending text messages, [he] evinced a substantial and wilful breach of the Code of Conduct and the Safety Instruction.”
“Accordingly, for the reasons stated, his conduct constituted a valid reason for his dismissal,” it ruled.
