Australia: Fair Work Commission dismisses unfair dismissal claim involving false bullying allegations

Labour, Employment and Workplace Safety Alert
Last Updated: 27 December 2013
Article by Christa Lenard and Matthew Parker

In handing down its recent decision in Hunter v The Commonwealth of Australia, represented by the Department of Sustainability, Environment, Water Population and Communities [2013] FWC 7917 (Hunter v Commonwealth), the Fair Work Commission (Commission) has ruled that an employee's dismissal was not harsh, unjust or unreasonable on grounds that, by making vexatious allegations of misconduct against his manager, the employee acted in a way that was "deliberate, and seriously unsatisfactory and deceptive".


The employee (Applicant) commenced employment with the Department of Sustainability, Environment, Water Population and Communities (Department) on 20 August 2008 in the position of Indigenous Land Management Facilitator. Some time later, another Department employee, with whom the Applicant had a poor relationship, Mr. Bensley, commenced as the Applicant's direct manager.

In his role as the Applicant's manager, Mr. Bensley conducted the Applicant's mid-term performance review. After interviewing the Applicant as part of this review, Mr. Bensley sent an email to him stating, among other things, that the Applicant's performance "need[ed] development".

As a result of this review, the Applicant compiled a detailed grievance document alleging that Mr. Bensley had displayed threatening and bullying behaviour towards him which had resulted in "psychologically injury" (Grievance). He subsequently lodged a claim for workers compensation with Comcare. Following its receipt of the Applicant's Grievance, the Department took steps to investigate the Applicant's complaints under the APS Code of Conduct.

During the investigation, the Department formed the view that "there was doubt over the veracity of Mr. Hunter's allegations and suggested that they had been made falsely". In light of this, the Department conducted a further investigation under the APS Code of Conduct into the Applicant and the allegedly false complaints.

During this second investigation, it was discovered that the Applicant, along with other Department employees, had made false allegations of bullying and harassment in order to convince the Department to terminate Mr. Bensley's employment. Emails were discovered from the Applicant to another employee stating that the Applicant would "play the indigenous card" as a way of achieving this aim.

The Department found that the Applicant's Grievance was false and vexatious and his employment was subsequently terminated along with another employee who made false claims against Mr. Bensley.


The Commission ultimately found that the Applicant's conduct "demonstrated a significant and deliberate lack of honesty and integrity in the course of his APS employment" and upheld the Department's decision to terminate his employment.

While the Applicant claimed that the Department's investigation in to his conduct was procedurally flawed, namely that he had not been allowed to use witness statements from two colleagues who could attest to the bullying behavior of Mr. Bensley, and the allegations against him were unproven, the Commission decided that the Department took appropriate steps in investigating the matter. Despite some minor procedural deficiencies that were identified, the Commission found that altering the investigative process would not have changed the outcome for the Applicant.

It was, therefore, concluded that the reasons for the Applicant's dismissal were well founded and defensible.

The Commission did not have jurisdiction to make any findings in relation to the Applicant's Comcare claim, which is currently before the Administrative Appeals Tribunal. Accordingly, the Commission did not make findings in relation to the Department's allegation that in making the compensation claim, the Applicant provided false and misleading information to Comcare in order to gain the benefit of compensation.

What Does This Mean for Employers?

With the new anti-bullying amendments to the Fair Work Act 2009 (Cth) due to commence on 1 January 2014, workers will soon be able to bring bullying claims against not only their employer but other persons in the workplace.

While many bullying claims may be genuine, there is still a risk for employers that a rogue worker may try to use the new bullying laws to satisfy an ulterior motive (for example, to be moved away from an undesirable position or department, or to invite disciplinary action against a colleague with whom they have a dispute).

For this reason, it is imperative to ensure that investigative processes are thorough and all reasonable steps are taken to properly determine the veracity of any bullying claim. If the investigative process is flawed and false bullying claims are allowed to occur, an employer is at risk of further claims from employees falsely accused of bullying. Furthermore, inadequate responses to any bullying claim can only have a negative impact on morale and workplace culture.

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.

K&L Gates has been awarded a 2012 EOWA Employer of Choice for Women citation acknowledging our commitment to workplace diversity.

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