Manager claims unjustified dismissal and workplace bullying after allegations of serious misconduct

A property manager dismissed for serious misconduct raised personal grievances alleging unjustified dismissal and multiple disadvantage claims centered on workplace bullying by a senior colleague. 

The worker claimed she repeatedly raised concerns about bullying with management throughout her employment, that the employer failed to properly investigate her complaints and keep her safe, and that the dismissal was retaliation for raising these concerns. 

The employer disputed the timing of many disadvantage grievances, arguing they were raised outside the 90-day statutory period and that it had investigated and addressed the worker's bullying complaints in 2023. 

Employment background and dismissal context

The employer, a real estate property business managing properties for client property owners, employed the worker as a property manager from December 2021 until dismissing her in April 2024 for serious misconduct.

The employer operates six branches in a geographical region with approximately 25 staff. The worker was employed in one branch situated in a small town.

The worker claimed her dismissal was unjustified, alleging that the dismissal was not sufficiently investigated as to two allegations of serious misconduct.

She claimed the procedure was flawed because the managing director was both the investigator and decision maker, that he was prejudiced against her, and that the employer had sufficient resources to have had an independent person involved. The worker also claimed the employer did not consider the issues she raised through her second representative in response to the disciplinary outcome.

The worker further claimed the disciplinary process and dismissal were not genuine and were the employer's retaliation for having raised bullying complaints throughout her employment about her senior colleague. She claimed this colleague was "protected" by the employer.

The worker sought various remedies, including a global compensatory figure of $50,000 for hurt and humiliation, lost wages, reimbursement of sick leave and annual leave used in lieu of special leave, and payment of costs.

Employer's challenge to timeliness of grievances

The employer said that some disadvantage grievances had not been brought by the worker within 90 days and it did not give consent for them to continue.

This included predominantly that it investigated and dealt with grievances raised by the worker in June 2023 about her claims that she was being bullied by the senior colleague and that the managing director had done nothing to address these issues.

The employer argued the worker did not then raise, within 90 days, a personal grievance to say that the employer's investigation of the June 2023 grievances was inadequate.

The worker sought to have all grievances she brought before the Authority proceed, saying she raised them within time or that there were exceptional circumstances showing it was just for the Authority to grant leave for them to continue.

The worker cited two successive representatives letting her down and that her health affected her ability to further address the issues that she maintained continued to adversely affect her personally and in the workplace. The worker submitted that overall, it was just to grant these grievances within the context of a bullying claim in the workplace and the effect this has on a complainant's functioning.

Timeline of bullying complaints raised with management

The worker's evidence included that she raised issues about the senior colleague from May 2022, though the managing director had no recollection of the earliest time the worker said she reported issues.

The worker's email included that she raised issues from January 2023, creating an inconsistency in her evidence. The ERA found that, based on limited evidence, a discussion in May 2022 did not raise a personal grievance sufficient for the employer to have replied.

The next discussion occurred in January 2023, where it was not disputed that the worker informed the managing director that the senior colleague had been misusing a company fuel charge card for private purposes and that the worker wanted her name kept out of it.

While the managing director agreed to this, he did not include in his evidence that the discussion further included what the worker said she told him about the senior colleague having ceased communication with her, that she had no support in the workplace, and that he told her he would talk to the colleague, but later did not.

The ERA found it was likely at least that the worker informed the managing director about the fuel card disclosure and raised an employment issue for the employer to address.

File notes documenting discussions

The managing director provided two file notes for discussions in March and April 2023. The file note for March 2023 recorded that the worker told him there were things she was not happy about regarding the senior colleague, including that the colleague spoke in their native language during private calls, that the worker found it rude, and that the colleague would not go to a property with the worker.

The note recorded that the managing director asked if there was any reason, and the worker said not that she knows of, but the colleague has had some personal issues.

The note continued that when asked if there was anything else, the worker said she thinks the managing director will protect the colleague from any wrongdoing.

The managing director recorded that he said to the worker that everyone has busy days and occasionally people don't want to chat, but if there were issues that needed looking into, the worker would need to give him a written summary. The worker's evidence about this discussion excluded any mention that the managing director told her to put matters in writing.

The managing director's April 2023 file note included that the worker raised with him that something needs to happen about the senior colleague.

The ERA found that this likely supports that this was not the first time the worker had raised issues with the managing director. The file note included that the worker told the managing director the colleague was not talking to her, not supporting her, ignoring her, and not going out to properties together.

Formal grievance and investigation outcome

The managing director's evidence was that in June 2023, he met with the worker and the senior colleague at their branch to discuss a marketing campaign.

He said that after the meeting, the worker said she was having issues with the colleague, and he told her that if she wanted the employer to investigate and look into it, the best thing to do would be to put it in writing.

The worker's evidence was that in this discussion she raised that matters were not being addressed regarding the colleague, that they had worsened, and that she urgently needed help from management in sorting these issues.

Within days, the worker put into writing a lengthy series of times she said she raised the issue of bullying and lack of support and training with the managing director.

While the employer said it accepted the worker raised a grievance in the June emails about bullying behavior, it said that after this, the employer investigated and dealt with the matter during a time she was represented by her first representative.

The employer verbally told the worker in August 2023 that it had concluded there was no bullying behavior but that there was an interpersonal relationship problem.

The wording used in March 2024 by the worker's second representative included that the worker raised allegations of repeated unreasonable treatment by the senior colleague in 2023 and claimed she had personal grievances.

The representative stated the purported process in 2023 was a sham, and that the worker's view was that the current investigation was a vehicle to reach the predetermined outcome of terminating employment as a result of raising the bullying allegations.

The employer responded that it considered the worker's claim that she was bullied by a colleague throughout early-mid 2023 to be an allegation of historic bullying and that it had provided a substantive response to this matter when the worker was represented by her first representative.

Exceptional circumstances analysis 

The ERA accepted the worker's disadvantage grievance was more than just about the senior colleague's bullying behavior but that the investigation the employer conducted was flawed, including that the worker was not well prepared enough after a first meeting, and that when the employer held a further meeting and delivered its outcome to say it concluded there had not been bullying, she was never provided the written findings to respond to.

The Authority found nothing before it showed the worker raised a grievance within 90 days, that the investigation delivering an oral outcome in August 2024 was an action disadvantaging her.

The transcript of the August 2023 meeting included the manager's verbal communication to the worker that the employer did not consider after investigating that she had been bullied but that there was a situation of interpersonal communication conflict.

The manager stated that at the end of the meeting, he would send an email to the worker's solicitor covering what was discussed. The ERA found nothing before it showed the above document was ever sent.

The worker's first representative messaged the worker shortly after the meeting, saying they did not appear to have the letter yet. The worker continued to find out where the letter was by communicating with her first representative, which the ERA did not find unreasonable in the circumstances of her complaint relating to a bullying claim.

The representative indicated issues with having long COVID and hence delayed replies, and also that he continued not to have the letter from the manager.

Authority's determination on exceptional circumstances

The ERA accepted the worker's last communication to the first representative was in October 2023, when she was referring to paying off the representative's fees and stating she was not just going to let it lie and wanted it in writing.

The worker and her partner's evidence included that the first representative then became unresponsive from mid-October 2023, and they had to find a second representative. The second representative was involved after the employer communicated its investigation into the worker's conduct in November 2023 by sending a letter containing fourteen allegations to be investigated.

The ERA accepted that the first representative likely let the worker down by becoming unresponsive. There was evidence that she tried to take reasonable steps to have them address the situation about her claims of bullying as late as October 2023, which was supported by her words to the first representative that she was not prepared to let things lie.

The Authority found this was likely about her not accepting the outcome of the investigation by the employer.

The ERA accepted that the worker showed that exceptional circumstances applied under the provision regarding an agent unreasonably failing to ensure the grievance was raised within the required time, and they likely caused a delay in her raising the grievance.

Having found exceptional circumstances occasioned the delay, the Authority was required to consider overall whether it was just to grant leave.

Justice assessment and leave determination

The length of time that it took for the employer to be put on notice about this grievance would at most have been approximately four months after the expiry of the 90-day period.

During these four months, the ERA found it likely the worker was distressed about the disciplinary process occurring as she was facing a significant list of allegations about her management of a tenancy.

The Authority observed that in the context of what the worker claimed was happening to her in the workplace in June 2023 and that the employer was failing to address those things, in the context of the worker then trying unsuccessfully to have her first representative raise her dissatisfaction, the worker was likely caught in circumstances that may have been beyond her ability to manage.

The ERA considered whether the time frame of four months delay would have a detrimental effect on being able to test people's memories of evidence. There were two full transcripts of meetings still available, the two June emails, and those involved may still be available as witnesses.

The Authority was satisfied that the time delay would not impede its ability to hear evidence fairly.

The ERA accepted there was a human element that remained not straightforward for those in a workplace who claim they are being treated poorly by a senior colleague and where they may feel their employer is not doing sufficient to address their claims.

This persuaded the Authority that the justice of granting leave in the circumstances of having found exceptional circumstances weighed in favor of the worker.

Accordingly, the worker was granted leave to bring her grievance that her complaints about the senior colleague's alleged bullying behavior, as raised in emails in June 2023, were not addressed by the employer in its investigation and, as such, did not keep the worker safe in the workplace.