Fair Work Commission upholds dismissal of workplace aggressor on employee safety grounds

In Mr Sirajul Bashir v Alex Perry Pty Ltd t/a Alex Perry [2019] FWC 2041, the Fair Work Commission has upheld the summary dismissal of a former employee of Alex Perry Pty Ltd, who was terminated from employment for engaging in repeated aggressive and demeaning conduct towards his female colleagues.

The facts of this matter, while at the more extreme end of the spectrum, provide a timely reminder for employers to consider the issue of workplace behaviours from a work health and safety perspective. Where more commonplace swearing and banter crosses over into conduct that could reasonably pose a threat to the health and safety of other employees, there is a lawful and reasonable basis for employers to step in and intervene and take appropriate actions up to and including termination of employment.

Decision

The Applicant, Mr Sirajul Bashir, was employed with Alex Perry Pty Ltd in the position of Custom Made Pattern Maker/ Sample Machinist, working from a relatively small, open plan workroom.

Mr Bashir engaged in a range of inappropriate conduct that was identified by his employer as posing a threat to the health and safety of others in the workplace, particularly women. This included:

• Threatening and directing gross profanities towards a 65 year old female colleague who commented on his workmanship;
• Various examples of aggressive swearing and threats to hit or slap female colleagues;
• Informing a colleague that “sometimes women just need a slap”; and
• Refusing to refer to female colleagues by their names and instead using “her” or “she”.

Mr Bashir was also involved in an incident with the HR Manager, involving him initially refusing to accept a warning letter, then briefly reading it and throwing it at her, stating “I’m not signing this. Who are you? You are nothing.”

Mr Bashir then attended a meeting with Alex Perry, owner and director of the Company. During this meeting, Mr Bashir denied that any of the incidents had occurred and was subsequently summarily dismissed for persistent aggressive and demeaning conduct.

The witness evidence at the hearing overwhelmingly corroborated that Mr Bashir used aggressive, threatening and intimidating language towards female colleagues on at least three occasions, and was also rude, offensive and dismissive to the HR Manager. The presiding Fair Work Commission member, Deputy President Sams, found that Mr Bashir’s continued denials of the offending conduct were unbelievable and implausible, that serious misconduct was proven on the balance of probabilities and that there was a valid reason for the summary dismissal.

Deputy President Sams was also not convinced there were any procedural defects in the process of dismissal that otherwise rendered Mr Bashir’s dismissal harsh, unjust or unreasonable. For example, Deputy President Sams stated that:

• It was not problematic that Mr Bashir was summarily dismissed for serious misconduct but still received five weeks’ pay in lieu of notice. This payment did not mean that reason for Mr Bashir’s dismissal or its immediate effect were called into question;
• The termination letter did not expressly set out the conduct reasons relied upon in support of Mr Bashir’s summary dismissal, however, it was sufficient in the circumstances that he was made very aware of these reasons during the face to face meeting with Mr Perry. It had also been made clear to Mr Bashir during previous discussions that his employment would be in jeopardy if he continued the threatening and aggressive behaviour; and
• While Mr Perry conducted the dismissal meeting using a script that referred to the outcome of dismissal, the result of the dismissal meeting was not predetermined, as the script also left spaces for explanations or answers from Mr Bashir. The script was merely a prompt to the matters that needed to be addressed in the meeting to ensure Mr Bashir was provided with an opportunity to respond prior to the final outcome being determined.

Implications for employers

Any workplace will contain conflicting personalities and many will have a culture in which some level of swearing and banter is commonplace (albeit not recommended). However, it is all a matter of degree and workplace interactions need to be assessed against an employer’s primary duty of care to ensure, so far as reasonably practicable, the health and safety of workers (including their mental health) while they are at work in the business or undertaking.

The risks for employers who do not address inappropriate workplace conduct include being issued with an improvement notice by the relevant work health and safety regulator bullying claims, discrimination claims, general protections claim and increased insurance premiums due to workers compensation claims.

The approach for mitigating these risks should be both forward looking and responsive, including:

1. Having a current and compliant code of conduct or other policy that clearly sets out the standards of behaviour that will and will not be tolerated in the workplace;
2. Ensuring employees are provided with and receive training on Company policies and procedures (including induction training and refresher training). It is also advisable to have signed acknowledgements from employees confirming they have read and understood Company policies and procedures;
3. Including express provisions in employment contracts that employees will comply with Company policies and procedures, act in a lawful manner at all times and take reasonable care for the health and safety of themselves and other persons in the workplace;
4. Reviewing current workplace activities regularly for bullying and/or other inappropriate behaviours as part of workplace hazard assessments. These assessments should consider behaviour by employees at all levels and not turn a blind eye to unacceptable behaviour by senior management or high performers;
5. Acting promptly and efficiently in response to employee complaints;
6. Conducting timely, effective and procedurally fair investigations to determine whether the allegations are made out on the balance of probabilities;
7. Stepping in to intervene and take disciplinary action where required. This may involve a warning and/or training for less serious, one-off incidents, or dismissal where the behaviour is severe, intentional and/or repeated;
8. Offering support for victims, for example, confidential counselling; and
9. Continuing to raise awareness of this issue in the workplace.

This article was written by Brad Swebeck, Partner, Laura Gavan, Senior Associate, and Alexandra Abbott, Graduate-at-Law.

Brad Swebeck

P: +61 2 9334 8781

E: bswebeck@hwle.com.au