It can be a really difficult situation for an employer when two
staff members simply do not get on. Neither is necessarily at fault
or, alternately, both of them are. But what can an employer do? An
employer is not able to make people like one another and their
antagonistic behaviour can cause havoc in the workplace.
In a recent (sensible) decision by the Full Bench of the Fair
Work Commission, the FWC faced an appeal by an employee who had
been dismissed following a year of conflict with her fellow
employee in the confines of a small office. The Full Bench
acknowledged that the reason for the decision was not necessarily
the behaviour of the sacked employee but:
"...the existence of an interpersonal conflict in a
small workplace which had reached a point where it had become
incapable of any resolution and was affecting the performance of
work and the company's relationship with its
Importantly, it was not found necessary that the employer
establish that the sacked employee was the one at fault. The full
bench even acknowledged that the employer had acted
"unwisely" in dismissing the employee in
"the heat of the moment". Nevertheless, it
upheld the right of the employer in that situation to terminate an
employee where the prolonged hostility between the staff was
affecting the business.
This decision comes at the same time as another sensible
decision (albeit by a single commissioner and, therefore, not quite
so binding) in response to an employee's application for a Stop
Bullying Order. In the course of considering the evidence of terse
exchanges between the employees, the Commissioner found that the
fact that two employees did not like one another and behaved in an
abrasive and sometimes abrupt manner to one another did not amount
In this instance, the Commissioner found that the fact that one
employee - in their contact towards another - had been
"...upset, exhibited intolerance or low level
anger..." did not constitute unreasonable behaviour. He
further found that the employees "... probably did not
like each other, and may have even been mutually hostile toward one
another", but that did not amount to bullying.
It is gratifying that of the 500+ applications for
stop-bullying-orders filed this year – the FWC has only made
orders in one of those cases, (although there would have been a
number of mutually agree orders).
Some of the members of the Commission are realising that
employers are not relationship councillors and cannot make
employees best friends. The reality of all working communities is
that not all individuals will get on. In fact, many will dislike
each other and that will never change. However, affection between
staff cannot be the employer's problem.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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