Fair Work Commission upholds redundancy on appeal
News 16 September 2020

FWC issues warning to employees over counter-allegations

A case brought before the Fair Work Commission has highlighted the importance of gathering evidence, documentation and adopting of Fair Work processes during performance reviews.

The Fair Work Commission (the “Commission”) has dismissed an unfair dismissal claim in which an employee asserted she was forced to resign because of ongoing bullying behaviour. The Commission determined there was no evidence to substantiate the employee’s claims and in doing so confirmed the resignation was at the employee’s initiative.

Overview of the facts

The employee was a leader at an early learning centre (“the Business”). Several performance and conduct issues had been noted including lateness, health and safety issues, failure to comply with uniform requirements, engaging in gossip, a lack of teamwork and a failure to perform a number of leadership duties.

The Business conducted a performance meeting on 29 October 2019 and raised the performance and conduct issues with the employee. The employee was given an opportunity to respond and despite notes that were produced during the meeting, which indicated the employee did indeed respond, the employee asserted no such opportunity was afforded.

On 1 November 2019, a further meeting was conducted. During the meeting the employee was issued with a warning and advised they would be placed on a Performance Improvement Plan.

Less than two weeks later, on 11 November, the employee made vague allegations asserting the Centre Director had engaged in bullying behaviour and that she would be taking an indefinite period of stress leave.

The Business’ HR Manager explored the employee’s complaint.

The employee argued the Centre Director did not follow a fair process as they failed to provide the employee with an opportunity to respond. The HR Manager, having regard to the handwritten notes taken during the meeting (recording the employee’s responses), as well as the written response provided by the employee after the meeting, considered the process was appropriate.

The HR Manager also noted further follow-up meetings had been conducted as part of the ongoing performance improvement process.

On 2 February 2020, the employee resigned by email. The employee noted the resignation was a consequence of “performance issue allegations (without any evidence) and being bullied by the Centre Director. The employee cited “her rough behaviour towards me and yelling at me in front of other staff members on several occasions”.

The employee went on to file an unfair dismissal claim, arguing she had been forced to resign.

The Decision

The Commission dealt with the application by way of determinative conference. The Commission concluded the employee was not forced to resign and therefore dismissed the application.

In reaching this decision the Commission considered the parties’ evidence and submissions.

Notably, the Commission considered the lack of particulars and evidence provided by the applicant, together with admissions that the issues contemplated by the performance improvement plan were legitimate, demonstrated the action taken by the Business was reasonable management action.

Additionally, the evidence presented by the Business, including handwritten meeting notes, demonstrated a fair and reasonable process had been followed which included affording the employee an opportunity to respond before disciplinary action was taken.

In its decision the Commission provided a warning to employees noting “[It] would with respect be disappointing if a custom and practice arose of the applicants making unsubstantiated allegations of bullying or general protections breaches in response to ordinary employer performance improvement, disciplinary or other action. This would be an abuse of process.”

Learnings for business

When addressing performance or conduct concerns it is vital for a business to gather evidence and adopt a fair and reasonable process. It is also crucial for the business to document the process which includes keeping accurate incident reports, discussions notes, meetings minutes as well as recording any warnings issued to the employee.

A failure to provide evidence of the process undertaken or the information considered can expose a business to a variety of employment-related claims.

How we can assist

The Victorian Chamber’s workplace relations consultants have a wealth of experience advising and defending unfair dismissal, bullying and general protections claims. They understand the process and can easily navigate the formalities of the Commission from filing the response through to representing your business during a conciliation, conference or hearing.

If you have received a claim or complaint or want to ensure your performance management and disciplinary processes are fair, robust and defensible, call the Workplace Relations Advice Line on 03 8662 5222.

Written by Eliza Johnstone, Graduate Workplace Relations Advisor.

[2020] FWC 41498

MCC Contact

Get in touch with the Melbourne Chamber of Commerce

03 8662 5214



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