The FWC has found two companies had valid reasons for dismissing male workers who verbally abused female colleagues, but in one case it did not justify going the further step of summarily sacking the long-serving employee from a workplace that tolerated the "F bomb".
The tribunal upheld the dismissals yesterday, but while it found both employees' behaviour constituted serious misconduct, Commissioner John Ryan found a glass and glazing company's employee entitled to payment in lieu of notice despite his employer treating the separation as a summary dismissal.
In the first case, car dealership Dominelli Group Pty Ltd (T/A Rockdale Nissan) dismissed a sales consultant in March after he rang the company's stock controller and verbally abused her for contacting his wife — who was also employed by the company — while they were on a rostered day off.
The court heard the sales consultant told the stock controller "don't fucking call us ever" and "we are busy" and when she told him he should have left instructions not to interrupt them he called her a "stupid cunt" and hung up.
Senior Deputy Hamberger accepted that the sales consultant had also ridiculed the stock controller and insulted her in the months before the incident, and that the company's chief executive had cause to speak to him about his behaviour on several occasions during his seven-month tenure.
In ruling the Nissan dealer had a valid reason to dismiss the sales consultant, Senior Deputy Hamberger said his actions in speaking to the stock controller were "utterly unacceptable and constituted serious misconduct" and "the latest in a series of unacceptable actions" directed at her.
Lyndon John Kube v Dominelli Group Pty Ltd T/A Rockdale Nissan [2016] FWC 7697 (24 October 2016)
Warning given in context that "F bomb" was tolerated
Commissioner John Ryan yesterday found that Masterglass & Aluminium Pty Ltd (T/A MasterGlass) also had a valid reason for dismissing a sales/estimator "in that he used extremely abusive language to a fellow employee a week after having been warned not to use such language towards the same employee".The estimator admitted yelling at his colleague "I am not fucking explaining this to you…" and a week later telling her: "Shut the fuck up bitch! You fucking bitch! Fuck off, shut the fuck up".
But while he conceded it was "probably going a little bit too far", the estimator said he was "quite happy" that during his five-year tenure there were only two examples of him using "a word like that".
He also argued that "very similar language [was] going both ways" and submitted that "after listening to that sort of language common in the workplace for five and a half years it's slipping out a couple of times myself".
The company's managing director admitted that it tolerated the "F bomb" in the workplace but said the estimator's "choice of words was inappropriate" and excessive.
Commissioner Ryan said the company's warning to the estimator a week before his dismissal was "given in the context that [the managing director] accepted that some use of the 'F' word was acceptable in the workplace" and it was "not clear as to the consequences".
He concluded that although the conduct "created a valid reason" for the estimator's dismissal, it "fell short of being conduct which was incompatible with a continuation of the employment relationship such as to warrant summary dismissal".
But although the "procedures used to effect the dismissal support a finding that the dismissal was harsh", the presence of a strong valid reason weighs very strongly in favour of a finding that the dismissal was not harsh, unjust nor unreasonable", Commissioner Ryan said.
He also noted that the estimator had initiated small claims proceedings for payment in lieu of notice, annual leave and wages that the managing director had chosen not to pay because he believed the termination was for serious misconduct.
Commissioner Ryan said that "given the finding of the Commission that instant dismissal was not warranted" the estimator "has an entitlement to payment in lieu of notice".
Michael Guenther v Masterglass & Aluminium Pty Ltd T/A MasterGlass [2016] FWC 7717 (24 October 2016)
Verbal abuse of women "unacceptable": Workplace barrister
Wardell Chambers barrister Larissa Andelman told Workplace Express today that the cases "highlight that verbal abuse directed at women is unacceptable"."Proven verbal abuse, (such as fucking cunt or stupid bitch) by an employee is prima facie a 'valid reason' for termination of employment," Andelman said.
"It is also critical that employers are conscious that failing to put in place appropriate, regular and inclusive training and easy to understand and clear policies as well as leading from the top is likely to result in unhappy workplaces, high staff turnover and risk of litigation", she said.