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Unfair Dismissals

Unfair Dismissal: Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners [2014] FWCFB 8278

The Full Bench of the Fair Work Commission has found that resolving a workplace conflict by dismissing one of the two workers involved in the conflict was not unfair just because the employer could just have easily chosen to dismiss the other staff member.  


The two employees, Mr Lumley and Ms Cook worked together in a small office. In early 2013, there was a total breakdown in their working relationship, which had a direct impact upon the performance of their jobs.

In July 2013, Ms Lumley made a formal complaint alleging bullying on the part of Ms Cook. The complaint was investigated by the employer and found to be unsubstantiated. The employer conducted a mediation to try to resolve the conflict between the two employees. When that was unsuccessful, the employer put in place a procedure in which it was expected that the employees would first go to their manager to report any problems with their co-worker rather than taking it up directly with the other employee.

Issues continued to arise between the employees. In September 2013 Ms Lumley was sent a final warning letter advising that if there was no improvement in her conduct, her employment may be terminated.

In February 2014 a further altercation occurred between the two employees. During a meeting afterwards, Ms Lumley goaded the manager into dismissing one of the two employees, not expecting that it would be her that would be dismissed. The manager then proceeded to dismiss Ms Lumley with immediate effect. Ms Lumley commenced proceedings claiming that she was unfairly dismissed.

Decision

The Full Bench found that Ms Lumley was not dismissed because she was responsible for the conflict. The reason for the dismissal was the existence of an interpersonal conflict in a small workplace which had reached the point where it had become incapable of any resolution and was affecting the performance of work and relationships with customers. The dismissal was therefore valid and found not to be unfair.

The fact that the situation might equally have been resolved by the dismissal of Ms Cook could not render Ms Lumley’s dismissal unfair. 

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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Former Director of Corporate and Government Affairs, Ms Kate Shea, alleged that her employer, EnergyAustralia Servives Pty Ltd, took adverse action against her by terminating her employment. Ms Shea made what she described as several workplace complaints and argued that this was the actual reason for her dismissal, not the stated reason of genuine redundancy.

The Trial Judge dismissed the application. Significantly, applications under the Fair Work Act 2009 (Cth) do not usually attract cost orders as it is a non-costs jurisdiction. EnergyAustralia subsequently brought an application for indemnity costs against Ms Shea. Judge Jessup held that due to several unreasonable acts by Ms Shea, which caused her employer to incur costs, she should be liable to pay those costs on an indemnity basis.

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Unfair Dismissal: Ronald Anderson v Thiess Pty Ltd [2014] FWC 6568

An employee has been awarded almost $30,000 after he was dismissed for sending a work email to colleagues that discriminated and vilified Muslims and incited violence towards them. Whilst the Fair Work Commission (FWC) found that the employer had a valid reason for dismissing the employee, due to the employee’s poor prospects of finding other employment and because he had received no prior warnings, the dismissal was harsh and unreasonable

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