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Undermining the HR manager was serious misconduct

Her behaviour amounted to serious misconduct that justified her dismissal.
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Undermining the HR manager was serious misconduct

Undermining the HR manager was serious misconduct

2 March 2021

By Gaby Grammeno

After a worker was sacked for making false allegations about an HR manager, taking excessive unauthorised breaks and breaching COVID-19 and other workplace policies, a Commission found her behaviour amounted to serious misconduct that justified her dismissal.

The misconduct

The worker was employed as a senior quality inspector with a Sydney company manufacturing aerosol valves and plastic moulded products, where she had worked for 17 years.

By May 2020, her conduct had begun to cause concern. That month, a co-worker unexpectedly died and the quality inspector was involved in the collection of money for the worker’s family, from staff on the afternoon shift.

On 27 May the inspector met with the HR manager and another employee, where she was asked approximately how much money had been raised. She became agitated and walked out of the meeting, later complaining (‘yelling and screaming’) that she’d been berated and criticised for organising the collection and sending flowers to the funeral.

The HR manager believed the inspector had misrepresented their discussion and made false allegations.

Two days later, the inspector had breached the company’s COVID-19 policy regarding visitors to the site by permitting access to two union officials without authority from the operations director, and escorting them from reception to the meal room without asking them the required questions or checking their temperatures.

On the same day, the inspector had removed the HR manager’s signature from a confidential email, inserted a forged signature and distributed it to colleagues, an act later characterised as an attempt to defame, bully and harass the HR manager.

For the previous six weeks, the inspector had been observed taking excessive, unauthorised breaks on numerous occasions.

On 16 June 2020, the inspector received a ‘show cause’ letter from the operations director, setting out the company’s objections to her conduct, including an assertion that she had attempted to bully and harass the human resources business partner by making non-factual and vexatious allegations. From that date she was stood down on full pay.

The inspector was directed to attend a meeting on 18 June and advised that termination of employment was one of the potential outcomes of the meeting. At the meeting, she answered ‘No comment’ to a number of questions put to her.

After considering her responses at the meeting, management determined that her behaviour and her responses to the allegations made against her were inappropriate, lacked credibility and warranted her summary dismissal.

The inspector believed the termination of her employment was unfair, and after an unsuccessful attempt at conciliation, she applied to the Fair Work Commission seeking reinstatement.

In the commission

The commission heard details of the company’s policies with regard to employee conduct, discrimination and harassment, internet, email and computer use, social media, privacy and complaints, and COVID-19.

The inspector and her employer’s representatives put forward conflicting evidence. Company staff said the inspector behaved as though she were exempt from workplace policy requirements, particularly the COVID-19 policy.

The operations director listed his reasons for losing trust and confidence in the inspector, including that she ‘remains intent on damaging and undermining the HR manager and is driven by malice’.

The deputy president was satisfied that the inspector’s actions in making false and hurtful allegations about the HR manager and exploiting the opportunity to ‘put the knife’ into her was unacceptable and in breach of the company’s code of conduct. It constituted misconduct.

He also found that in the meeting on 18 June 2020, the inspector was less than frank, and at times uncooperative.

‘It is incumbent on an employee to be completely honest and cooperative during meetings and an investigation into their behaviour. A failure to do so invites a finding that there can be no trust and confidence in the employment relationship,’ he said.

He found that the reasons for the inspector’s dismissal were valid when taken together and viewed in aggregate, in the context of her less than honest and uncooperative responses to reasonable and legitimate questions in the meeting of 18 June 2020, and her lack of contrition and failure to acknowledge any of her unacceptable behaviours.

The deputy president found that any mitigating factors did not outweigh the seriousness of the inspector’s misconduct, and her sacking was not harsh, unjust or unreasonable.

Her application was dismissed.

The bottom line: Employees must comply with their employer’s policies. An employee does not have the right to silence or to be uncooperative in meetings to discuss allegations against them.

Read the judgment

Nisset Puth v Precision Valve Australia Pty Ltd [2020] FWC 7027 (29 December 2020)

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