Employee said he was expressing distress about unfair treatment by management
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a train crew supervisor who argued he was dismissed after expressing distress about being placed on a performance improvement plan.
The worker had been employed for three and a half years when he was dismissed in July 2024 following interactions with his managers that the employer alleged were loud, aggressive and intimidating.
The employer contended the worker's conduct caused a risk to the health and safety of colleagues and constituted misconduct proportionate to dismissal.
The worker argued that speaking in a loud manner was a result of hearing loss in one ear and denied that his conduct was as described by the employer.
The worker's view was that his placement on the performance support plan and interactions with managers about it constituted bullying and harassment, and his behaviour demonstrated his distress at being bullied. The worker sought reinstatement to his role.
Performance plan triggered dispute
The worker commenced employment on 21 January 2021 as a passenger service attendant and then a train crew supervisor with a public transport provider that operated the rail network for South Australia.
In April 2024, the worker was placed on a performance support plan with a focus on improvement in correctly following the employer's procedures. The worker disagreed with the matters raised in the plan.
The worker's direct manager gave evidence that she had noticed issues with his performance in January and February 2024 that "largely involved [the worker] not following procedures".
The manager said the impact of the failure to follow procedures was sometimes of low significance and at other times of greater significance, for example, when he failed to take instructions from network controllers and it "caused delays to the train network, which in turn caused other staff to fail to meet KPIs".
The manager noted the change in the worker's compliance with procedures was "relatively sudden" and as such, she formed the view that it was deliberate.
The worker gave evidence that the performance plan meetings were conducted in a "distressing and unfair manner".
The worker said he was "confused" as to why he was placed on the plan because he had otherwise received positive feedback and recognition for his work through nominations for employee appreciation awards in 2022 and 2024.
The worker drew attention to what he said were inaccuracies in the plan, including instances where he said he could not have made the errors he was accused of for various reasons, including his absence from work at critical times.
Worker's incidents with management
On 22 May 2024, the worker said that he and a manager had a difference of opinion and "sensibly argued our respective stances on the issue at hand".
The worker explained that he was unable to follow relevant procedures strictly, as to do so "could result in severe delays and disruptions in the network".
The worker said that train crew supervisors customarily exchange favours to facilitate the smooth operation of train services, and he explained this to the manager.
The manager's recollection of the exchange was different. The manager said the worker was animated, agitated, argumentative and dismissive during the exchange and that he responded to points made by the manager with sarcastic smiles and gestures.
The manager considered the worker's behaviour to be "entirely inappropriate for the workplace". The manager noted: "It was apparent that [the worker] was not willing to accept a direction he was being given to follow a procedure that was part of his job."
A HR business partner also observed part of the exchange on 22 May 2024.
She gave evidence that she observed the worker being "aggravated" and "animated" during the interaction, which caused her to feel "confronted" by the incident.
She said she removed herself from the room because she "didn't feel safe" and then reported the incident by email to her manager.
Worker's alleged aggressive conduct
On 5 June 2024, a meeting about the performance plan was conducted with the worker and two managers present.
The worker said the meeting started with a discussion about evidence he had prepared "in relation to unfair conduct of the [plan] and the inaccuracy of the [plan] document".
The worker's evidence was that one manager was "confrontational from the outset of the meeting," and the worker felt stressed.
The worker said he advised the managers that he needed a support person and left the room.
He accepted he was "frustrated" with the managers because they were inconsiderate and unfair in the way they were approaching the process.
One manager gave detailed evidence about the worker's conduct in the meeting.
The manager told the Commission that just after the meeting started, the worker interrupted suddenly and in an angry manner, raised his voice, accused the managers of changing the plan, his arms were flying around, and he was animated.
The manager said the worker's conduct was aggressive, describing him leaning over the table towards the other manager and regularly speaking over the other managers.
The worker's direct manager said in her evidence that the worker was defensive in the meeting.
She said when she and the other manager attempted to address the worker's concerns about the contents of the plan, the worker continually interrupted and spoke over the top of them.
She said the worker's behaviour in the meeting was intimidating because it involved sitting forward in his chair, "becoming bigger in his body" as he leaned towards the managers with both hands on the table.
After approximately six minutes, the worker left the room and "opened the door so forcefully that it banged against the white board behind it".
Worker's interaction with HR
After the worker left the meeting with the two managers, he went to speak to an HR business partner to make a complaint of bullying against the managers.
The HR business partner invited the worker to discuss the matter in her office, which he declined because he said he felt "claustrophobic on account of what I endured" during the earlier meeting.
The worker and the HR business partner went outside to discuss the matter.
The worker said he raised a complaint about the alterations to the performance plan and accused one manager of "finding new and alternative ways to get under my skin, hoping to induce some sort of emotional outburst from me".
The worker's evidence was that he had "exceeded my tolerance for such antics and that it would be unfair to expect me to productively function at work after subjecting me to such emotional distress".
He also accused the managers of making up lies. The worker said he felt "justified in [his] frustration" because he had been subjected to an "emotionally deplorable situation".
The HR business partner gave a detailed account of the interaction. She said the worker spoke loudly to her, and the speaking loudly included yelling.
She said the worker was pacing up and down, was "using his size to be more intimidating", was "physically authoritative" with sudden and expansive hand gestures, and she felt uncomfortable and "did not feel safe".
The HR business partner said the worker cut her off and yelled louder when she tried to speak, and accused her of "being in on it too" and being a "liar".
Evidence of witnesses examined
The FWC examined the evidence given by all witnesses. Two other colleagues observed parts of the interaction between the worker and the HR business partner. One colleague said she observed the worker speaking loudly and was "concerned about the tone and volume of [his] voice".
She referred to the worker's tone of voice as intimidating and that he appeared to be "metaphorically standing over her" and "having a go" at the HR business partner.
She said the worker's body language was defensive and he had his "arms and upper body stretched out a bit more so as to make himself look bigger".
The worker, at several times in his evidence, said his hearing impairment in his left ear explained his use of a loud voice on the occasions in issue.
His evidence was that: "it becomes challenging for me to hear or control the tone and volume of my voice on account of having the advantage of merely one functioning ear. This compels me to speak in a higher volume as I am unable to hear the volume or the intensity of my voice."
The Commissioner stated: "I have no reason to doubt [the worker's] evidence that he has a hearing impairment. However, [the worker] could hear and engage in giving oral evidence and control the volume of his voice in the hearing. [The worker's] suggestion that the inability to control the volume of his voice is something that occurs when he is anxious is, in my view, unlikely."
"A hearing impairment also does not explain the other elements of his behaviour that the Respondent's witnesses described as intimidating, aggressive and inappropriate," the decision added.
Valid reason for dismissal found
The worker was suspended with pay on 7 June 2024. On 19 June 2024, he was presented with allegations of misconduct that included inappropriate and aggressive communication with his managers on 22 May 2024 and 5 June 2024 and HR on 5 June 2024.
The letter noted that a preliminary decision had been made that termination of employment was appropriate. The worker provided a written response to the allegations via his solicitors on 27 June 2024.
On 10 July 2024, the worker was informed that his employment was terminated effective the same date, with payment of four weeks' notice.
The employer advised the worker that his conduct had placed other employees at risk and that he had failed to appreciate the impact of his behaviour, show any remorse or offer a commitment to improve his conduct in the workplace.
The Commissioner stated: "After considering the evidence, it is evident to me that [the worker] lacked insight into his conduct and its impact on his colleagues and managers. The focus on his evidence was on the unfairness of his treatment by [the managers], and the lack of support he received from [the HR business partner]."
"[The worker] presented as feeling justified in the intensity of his expressions of distress without regard to how that behaviour could appear threatening and confronting to his colleagues and managers," the decision added.
Dismissal not harsh, unjust or unreasonable
The Commissioner concluded: "I accept the evidence of the Respondent's witnesses that they felt intimidated, confronted, distressed and disturbed by the conduct of [the worker] on 22 May and 5 June 2024. I accept that the exchanges with [the worker] on those dates had an impact on their sense of safety at work and their mental well-being. [The worker] failed to acknowledge and accept responsibility for his conduct."
The Commissioner found: "I find that the behaviour of [the worker] provided a valid reason for his dismissal from employment."
The FWC examined whether the worker was notified of the reason for dismissal and given an opportunity to respond. Despite the employer's failure to raise the first incident of alleged misconduct of 22 May 2024 at the time it occurred, the worker was ultimately notified of the allegations of misconduct in the show cause letter of 19 June 2024.
The worker was afforded a show cause process and had the opportunity to respond to the allegations in writing with the assistance of his lawyer on 27 June 2024.
The Commissioner stated: "[The worker] committed misconduct when he subjected his colleagues and managers to aggressive and intimidating conduct. [The worker's] behaviour was distressing and detrimental to the wellbeing and safety of his colleagues and managers. [The worker] denied the conduct and rather considered himself the target of bullying and harassment, which in his mind justified a level of emotional response."
"[The worker] showed no insight into or remorse for his behaviour. There was a valid reason for the termination of [the worker's] employment."
The FWC ordered that the application for a remedy be dismissed.
