The Federal Court decision to uphold the dismissal of an
employee, despite bullying allegations, confirms an employer's
right to take appropriate disciplinary action for workplace
misconduct, an employment law expert has said.
Joydeep Hor, managing principal of People & Culture
Strategies, told Lawyers Weekly that wharfie Steven
Lambley's unsuccessful Federal Court appeal to be reinstated
after fighting on the job highlights that mitigating circumstances,
such as bullying and intimidation, generally won't support an
unfair dismissal claim.
"It doesn't matter what your personal circumstances
are, conduct is conduct and misconduct is misconduct," he
said. "It's the classic two wrongs don't make a
Lambley was sacked by cargo terminal operator DP World in 2011
after a physical altercation with a colleague. Fair Work Australia
(FWA) initially accepted the authority of previous
cases that "in the absence of extenuating circumstances, a
dismissal for fighting will not be viewed as harsh, unjust or
unreasonable", but it also found that the dismissal was
"harsh" based on evidence that Lambley had been "set
up" by the colleague who had a history of bullying behaviour.
A subsequent appeal overturned the decision, and this was upheld by
the Federal Court (10 January).
Hor claimed that the outcome reassures employers that courts
will back dismissals that involve obvious misconduct. "An
employer with a zero-tolerance approach to any physical violence is
well within its rights to implement it."
But he also warned that a lack of clarity on what constitutes
"extenuating circumstances" under the Fair Work Act, and
whether workplace bullying could fall into this category, has meant
unfair dismissal claims often hinge on the individuals hearing the
"Some tribunal or commission members ... are known to be
more sympathetic to the circumstances of the dismissed employee,
whereas others are more black and white," he added.
The Lambley case has also cast a spotlight on the growing number
of bullying complaints in Australia, Hor continued, which
increasingly involve subtle forms of intimidation, such as an
employee feeling that they are being micromanaged or overly
"The reality is these types of behaviours are triggering an
enormous number of bullying complaints at the moment and employers
are struggling with that because, on one hand, they need their
leaders to be engaging in that kind of so-called performance
management but, on the other, they want to address this pandemic of
bullying claims within their organisation."
Queensland personal injury firm Trilby Misso has revealed it is
receiving an "alarming" number of enquiries from
individuals suffering extreme stress or depression caused by
bullying in the workplace.
"Bullying perpetrated by adults in the workplace is now
among the most common complaints we receive from people seeking
personal injury compensation," said principal lawyer Robyn
An online survey conducted by the firm revealed that 50 per cent
of respondents believed bullying and harassment was their biggest
problem at work. A further 29 per cent cited stress and burnout as
the most serious workplace issue, while 21 per cent pointed to
health and safety risks in their jobs.
Davies, who is currently dealing with eight workplace bullying
claims, believes that while there is greater awareness of workplace
bullying and some improved laws and procedures, the onus is still
on employers, specifically HR departments, to address the
"Unfortunately, I have found in claims I have dealt with
involving government employees or employees in large organisations
that the HR department was a toothless tiger and managers
perpetrating bullying and harassment did so unrestrained with the
complaints of victims ignored," she added.
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