Lynette Steele sued a registered club for compensation for
unjust dismissal. The dismissal related to repeatedly loud, abusive
comments to other members of staff, within the hearing of club
patrons, after Ms Steele arrived at work and was unhappy with the
state in which her workplace had been left by a prior shift.
Ms Steele agreed that, in part, she was upset because after her
first outburst, a co-worker had suggested that she must have been
"baking cookies" containing marijuana (which was said to
be part of her culinary repertoire).
Ms Steele lost her case because a number of independent
witnesses confirmed her loud and abusive behaviour.
FWA referred to an old case which decided that "a
single outbreak of bad temper, in company ... with regrettable
language" was not in itself a sufficient ground for
dismissal. However, FWA decided that:
"While an isolated outburst might be understandable in
certain circumstances , it must be emphasised that employees should
not, as a general rule, get angry and aggressive about problems in
the work place; let alone confront other employees about their own
problems....the applicant had a simple and longstanding practice to
adopt - contact the duty manager. It was not for her to berate and
abuse a fellow employee".
The conclusion that termination was justified was strongly
supported by what FWA described as "a truly breathtaking
record" showing an "appalling litany of warnings
and counselling" (at least 18 warnings) over many years.
This included two written warnings in the year prior to the final
Ms Steele objected to these prior warnings being taken into
account, because she did not accept the basis for them and had not
signed the written warnings. However, FWA held that against such an
appalling background, she had to prove that the various warnings
were substantially unjustified, not just assert it.
Ms Steele also had the nerve to argue that by giving so many
warnings, but not taking any action previously, the company had
effectively condoned her conduct, and couldn't complain now.
She said that she should've been given a final warning - but
FWA rejected that, saying that warnings must mean something to have
any practical effect, and to deter others. Requiring another
warning would have undermined the club's disciplinary
Ms Steele also criticized the process by which she was
terminated. However, as she had been advised of the issues (and it
was not necessary to give her everything in writing), suspended
prior to a meeting, and had two representatives with her at the
termination meeting, FWA was not impressed by this argument
Can any lessons be taken from this case?
As an employer, you need to be wary of terminating employment
because of an isolated incident of bad temper (depending on the
circumstances of course), particularly if the employee apologises
promptly and appropriately.
However, you are entitled to be assertive about disciplinary
processes where there are repeated infringements and, indeed, you
need to apply those processes in order for your disciplinary
processes to have teeth and credibility.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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