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FWC upholds dismissal of bully, despite no formal complaint

In this case, the Applicant was dismissed for bullying a colleague.  In the incident that led to the termination, it was alleged that the Applicant, together with two other employees, upon leaving the workplace “…deliberately drove their cars in such a way to block [the victim] from being able to make a right hand turn off the Golden Highway into the Mitchell Line of Road…”.

The Applicant admitted that he was driving next to and behind the victim at certain points in the journey, but denied that he acted with the intent to prevent the victim from making his usual right hand turn.  The Applicant and another employee were terminated because of the incident, with the third employee given a final warning.

The Commissioner found that there was a history of conduct that amounted to bullying of the victim.  Although it was found that the Applicant had not been involved in the earlier conduct, it was found that the Applicant thought that the earlier conduct directed at the victim was a joke.

The victim in this case, did not make a formal complaint, and it was argued by the Applicant that the Employer had no foundation for the investigation which led to the dismissal given that a complaint had not been made in accordance with the Employer’s policies.  The Commissioner determined that by reporting the conduct, and saying that he was happy for the Employer to take it further, the victim’s conduct constituted a complaint.  The Commissioner also stated:

“…once [the Employer] became aware that an event of the kind described by [the victim] in relation to his drive home from work … may have occurred, [the Employer] would, in my view, have been obliged to investigate the matter and take appropriate action, if it was satisfied that such conduct had in fact occurred.”

The Commissioner went on to find that the conduct of boxing the victim in on the motorway was deliberate and constituted a clear breach of the Employer’s Code of Conduct and bullying related policies.  The Commissioner subsequently found that the Employer had a sound, defensible and well founded reason to dismiss [the Applicant], and the application was dismissed.

Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers.www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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