The Fair Work Commission has ruled an employee's dismissal was fair as their behaviour created psychosocial risks for others. What does this mean for workplaces?
Details of the case
- Mr Remawi filed a safety report against another employee after a near-miss incident.
- Virgin investigated and witnesses confirmed Mr Remawi caused the incident to get another employee in trouble.
- The investigation revealed a series of false reports, harassment and dishonesty. Virgin dismissed Mr Remawi and Mr Remawi lodged legal action for unfair dismissal.
- FWC ruled the dismissal fair as Mr Remawi was, among other things, creating psychosocial risks for others.
Key insight for employers
The first insight is that employers have a right to take disciplinary action against poor behaviour (more on this below). The second insight is that poor behaviour and conflict are two different things. One is a serious risk to your workplace while the other is less so. It's important to define it, identify it and stop it. The case of 'Frost vs Ambulance Victoria' offered insight into how you might define poor behaviour:
"Frost is generally "rude"... the fact that he treats everybody in the same way... does not excuse his behaviour... In my opinion such behaviour creates a risk to health and safety".
Defining poor behaviour
In the Frost case, the Commissioner defined Frost's rudeness and lack of respect as bullying/harassment. How do you define poor behaviour in your workplace and are there poor behaviour issues right now that are being mistaken for conflict? There's a few pointers below to help distinguish the two.
Distinguishing conflict and poor behaviour
- Conflict is often a just disagreement between two people. Responsibility of this is shared.
- Poor behaviour could be bullying, harassment, manipulation, dishonesty, lack of respect and micromanagement among other things.
- A strong tell is there is a pattern of harm consistently stemming from the same person.
Identifying and addressing it
One of the key takeaways from these two cases is that employers have a right to take disciplinary action if poor behaviour is taking place. And, with 'Positive Duty' laws in place, they're also required by law to proactively identify it and address it.
We believe establishing an effective worker consultation process is a key foundational step here. And this doesn't need to be costly or complicated. We've designed an approach alongside Martyn Campbell that might be of interest to you and we've seen it help put a stop to poor behaviour. If you'd like to have a look at it, fill out this form here.
A question for leaders to consider on the back of these cases is 'How confident are we that poor behaviour isn't silently eroding our workplace and exposing us to legal risk?'. With the right approach, we can confidently address this.
Thank you for reading as always, we hope you found this insightful.
