Employer said it stopped giving shifts to the worker due to concerns for coworkers' mental health
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who alleged she had been unfairly dismissed.
The worker made an application on 19 May 2025 for a remedy. She commenced employment on 6 July 2022 as a casual cleaner and was dismissed on 13 May 2025.
The employer was a small business employing fewer than 15 employees. The case required the FWC to examine whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the employer had reasonable grounds to believe the worker's conduct was sufficiently serious to justify immediate dismissal.
Worker's version of events
The worker gave evidence that the initial reason for her dismissal was that they did not have enough work, and only at the conference did she learned the reason was due to an incident with a coworker on 10 March 2025.
The worker stated that on 13 May 2025, a manager advised her that her employment was terminated.
She stated she was not given a reason for her dismissal, an opportunity to respond, nor a response to her inquiry about whether she did anything wrong.
The worker said her hours dropped around mid-March without reason, and she repeatedly asked for more shifts.
However, she acknowledged a mediation meeting occurred on 12 May 2025, where she responded to a complaint from a coworker regarding the 10 March incident.
The worker contested witness evidence and said she had no recollection of kicking a bottle but recalled throwing her bucket down in anger.
The worker said the reduction in her hours and failure to resolve the dispute impacted her mental health. She was seeking compensation and did not wish to return to the workplace.
Employer's version of events
The employer submitted a signed joint statement from the director and assistant director stating that on 10 March 2025, the director received a message from relief managers that a coworker wished to report an incident.
The director spoke to the coworker and was informed that the worker verbally abused the coworker and kicked a water bottle in her direction as she tried to quickly leave the workplace.
The coworker was so distressed that she rushed out in tears. Due to the reported incident and concerns for the coworker's well-being, management determined not to roster the worker with the coworker.
The employer advised that a number of employees had been referred from an employment service and were individuals requiring tailored support through case managers. Both the worker and the coworker were such employees and came from vulnerable backgrounds.
The worker confirmed that her position was her first job in her working career. Following the incident and after the employer altered the rosters so that both employees did not work on the same days, the employer said it received repeated calls from the worker demanding additional shifts.
However, the employer submitted that it held genuine concerns for safety and well-being where the worker was likely to cause conflict.
Mediation meeting and dismissal decision
In an attempt to resolve the issue, the directors held a mediation meeting on 12 May 2025. After all employees left the meeting, the directors stated that the worker's support person advised management that other employees had reported instances of conflict with the worker in the workplace.
The directors submitted that they determined it was best to cease offering further shifts to the worker due to the conflict, concern for the coworker's mental health, and evidence of prior employees resigning because of difficulties working with the worker.
Notes of the mediation meeting stated that the support person opened the meeting, and the worker read from a pre-prepared letter apologising to the coworker for the events on 10 March 2025.
The coworker stated she did not consider the apology sincere and could not accept it. She stated she had been consistently treated with disrespect and intimidation. She left distressed from the meeting.
The employment service representative remained after the employees left and reported similar conflicts involving other employees. It was resolved by management that the worker's employment ought to be transitioned out with a reference.
A statement from a manager reported on the worker's admission that she engaged in abusive language and physically threatening behaviour towards the coworker.
The manager reported that other employees had come forward reporting on the worker's intimidatory conduct, and since her departure, now expressed that the work environment felt safer.
A statement from the coworker said she suffered anxiety arising from the incident when the worker yelled, swore and kicked a water bottle in her direction.
Another colleague who witnessed the incident said she witnessed the worker yelling and swearing and kicking a bottle in the corridor towards the coworker.
Small Business Fair Dismissal Code examined
The FWC examined whether the dismissal was harsh, unjust or unreasonable. It was not contested that the employer was a small business and that the worker was employed as a casual employee for more than two years on a regular and systematic basis.
The worker met the minimum employment period to lodge the application. The Code contained a definition of summary dismissal stating: "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal."
The worker submitted that she was not informed of the reason for her dismissal nor given a warning that her employment may be terminated on the basis of capacity or conduct. It was not contested that the worker received no warnings prior to her dismissal.
Her employment was dismissed on 13 May 2025, the day after the mediation meeting. It was not contested that the coworker lodged a complaint asserting the worker was yelling, swearing and kicking a water bottle in her direction. The worker contested kicking a water bottle but admitted to throwing her bucket and being agitated and shouting.
The employer asserted it held serious concerns for the health and safety of not only the coworker but also other employees, and this was the reason for the dismissal.
It contended that the mediation meeting provided no comfort that the worker could safely continue to work with her coworkers.
The Commissioner referred to a leading authority determining that where the Code applies, the employer must have reasonable grounds to reach the view that the worker's conduct was serious enough to justify immediate dismissal.
Reasonable grounds and conduct assessed
The Commissioner stated the Full Bench concluded there were two steps to determine whether the Code was satisfied.
First, whether at the time of dismissal the employer held the belief that the employee's conduct was sufficiently serious to justify immediate dismissal.
Secondly, whether that belief was based on reasonable grounds, incorporating the fact that the employer carried out a reasonable investigation.
The evidence was that the employer believed the conduct was sufficiently serious. The worker admitted to conduct directed at the coworker that had the effect of intimidating or frightening her during the mediation meeting.
A number of employees employed by the employer were engaged through the employment service and from backgrounds that rendered them vulnerable in the workplace.
The evidence that the coworker was intimidated by the worker's conduct was not contested; the worker admitted her conduct at times upset other staff.
She provided an example where she upset a person because she used "sarcasm" when they called bathmats foot mats. The worker described her conduct as sarcastic humour and admitted to inappropriate language.
The Commissioner stated: "I am satisfied that on the evidence that [the worker's] described 'sarcasm' included yelling, or shouting, or making hurtful comments about someone and towards employees already fragile. This conduct in the workplace is not only hurtful but a risk to health and safety."
The worker, like many of her coworkers, had personal challenges resulting in varying levels of vulnerability.
However, having observed the witnesses, the worker presented confidently in comparison to the coworker, and despite her intentions, it was reasonable to conclude the conduct was threatening and intimidator,y causing a risk to health and safety.
Serious misconduct finding made
The coworker admitted to rushing out after the worker started swearing and yelling at her.
She admitted to hearing a crash but did not turn around as she feared the worker. The witness saw the worker kick a plastic drink bottle in the coworker's direction and verbally express anger towards her. The Commissioner stated: "I am satisfied on the evidence before me that [the worker] used inappropriate language that was threatening towards [the coworker] and that such conduct has occurred at other times in the workplace."
The Commissioner stated: "I am satisfied that consistent with the evidence of the Directors that there were no performance issues. Both [the worker] and [the coworker] were both valued employees, however, the conduct displayed by [the worker] was considered threatening and aggressive and a threat to the health and safety of other employees."
The coworker's evidence was persuasive that she was fed up and extremely anxious due to the constant intimidation from the worker.
The worker submitted that her conduct was not intended to be hurtful; however, the intention was not the test, rather whether the conduct had the effect of causing risk to the health and safety of employees.
The worker did not contest that the meeting of the day before involved the directors, the coworker, the witness, managers and the worker with her support person.
The worker read out a statement where she apologised "if she hurt anyone". The coworker did not accept the apology as she did not consider it sincere because of the consistent treatment of disrespect and intimidation. The coworker left the meeting distressed.
Evidence from the directors and managers was that the worker acknowledged she used abusive language and engaged in physically threatening behaviour towards the coworker.
Code requirements satisfied
The Commissioner stated: "[The worker's] conduct was captured by the definition of serious misconduct in respect to conduct causing serious and imminent risk to health or safety of a person or the reputation of the employer's business. [The employer] held the belief that the conduct was serious enough to affect [the] health and safety of employees."
At the time of the dismissal, the employer held the belief that the worker's conduct was sufficiently serious to justify summary dismissal and carried out a reasonable investigation the day prior.
The employer had a valid reason, and even if there were any deficiencies in the process, the employer met the requirements of the Small Business Fair Dismissal Code.
The Commissioner was satisfied the worker was not oblivious to the reasons for her dismissal. The dismissal occurred immediately after the meeting, which was called to address the incident of 10 March 2025, where the worker read her pre-prepared statement that apologised for her conduct if she had hurt anyone.
The Commissioner stated: "I am satisfied that [the worker] understood that her conduct of 10 March led to the hours of work restricted to weekends when [the coworker] was not working and following the mediation where [the coworker] did not accept the apology, that the reason for dismissal was a reasonable conclusion."
The Commissioner stated: "Understandably, [the worker] was upset by the decision, and it is unfortunate as she enjoyed going to work and evidently was a good worker. However, her conduct let her down. Her characterisation of sarcasm and intimidatory conduct crossed the line and became a health and safety risk."
The Commissioner stated: "I am satisfied that [the employer] believed on reasonable grounds that the employee's conduct was sufficiently serious to justify immediate dismissal and had made reasonable investigations into the matter. This satisfies the requirements of the Small Business Fair Dismissal Code."
As the Commissioner found that the employer had met the requirements of the Code, it was not necessary to consider other factors. The application was dismissed.
