Fair Work Commission (FWC) Commissioner Jennifer Hunt has ordered an employer to compensate two casual workers for not providing them with work, even though they engaged in behaviour that was tantamount to serious misconduct.
In Mrs Carmen-May Olver: Mrs Linda Waldron v Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations (2019), two workers applied for unfair dismissal remedy when the employer told them there was “no work” for them.
Commissioner Hunt chose to hear the cases jointly, as they are a married to each other.
Couple’s bullying was ignored for some time
While the couple represented themselves and didn’t call any witnesses to give evidence, eight witnesses provided evidence on behalf of the employer.
The workers were described as “belligerent and disrespectful”, “rude and abrupt” and “abusive”.
Commissioner Hunt noted that from the witness evidence provided, the workers “were incredibly difficult to work with” and she herself found one of the workers to be “argumentative” in the hearing, accepting the employer’s claim that she was “abrupt, argumentative or belligerent”.
Before the alleged summary dismissal, numerous complaints had previously been made about the workers which the employer ignored.
A former supervisor at the company stated he was aware of “four confirmed cases of bullying towards other staff members”, three of whom later resigned.
“On a fair assessment, it appears to me that Coast Cat was heavily reliant on [the workers] for their superior handling of the Kanga [excavator], and they delayed addressing with them their conduct to other workers on account of not disrupting their only qualified operators,” Commissioner Hunt said.
Bullying behaviour comes to a head
The couple’s ongoing bullying conduct came to a head when two new trainee staff were hired to work alongside them.
They bullied, harassed and badgered both workers, making degrading comments towards them, calling them names and refusing to provide them with instructions.
On occasions they purposefully gave the workers incorrect instructions to ensure they failed at tasks.
They told one worker “We like you, you’re a keeper, but we do not like [the other worker]”, while they said to the other “Go pick that up you little c–t” and “What the f— are you doing?” among other things.
The couple also threw an esky containing this worker’s lunch and diabetes medication across the work site on one occasion.
Their bullying of this worker continued to escalate, culminating with him leaving the job when he “couldn’t take it anymore”.
In his resignation letter he wrote:
“…I must bring to your attention the rude and abrupt attitude of the 2 female employees … that I have worked alongside. They constantly team up and put others down, they hurled abusive remarks, swore at me constantly and didn’t want to train or teach me the job. They don’t follow procedures and just do it their own way. I apologise in bringing this matter up after resigning but feel you need to my resignation [sic] is due to the bullying I have received from [the workers] whilst working for you. I wish good luck to the future staff if they have to work alongside these women as I had to.”
The other worker, who was called a “keeper”, said he had “never been so belittled or spoken to as rudely in his life” as he was by them. He was the son of another worker in the company.
Commissioner Hunt said the couple “were incredibly protective over the duties operating the Kanga” and “wanted to make themselves indispensable on the Kanga, and made it very difficult for younger, inexperienced labourers to gain the relevant and necessary experience that Coast Cat wanted them to obtain”.
Ignoring was ‘callous’
The employer, which didn’t have a dedicated human resources department, argued that the workers weren’t dismissed.
Commissioner Hunt did not accept this.
The workers had previously organised to take leave two days after one of the trainees walked out.
On the day of the incident, a supervisor confronted one of the women to ask what had happened and told her that the couple had been setting up the trainees to fail.
“Well, I might call a sick day tomorrow. I can’t handle the stress,” the worker responded.
When she arrived home, the following text exchange took place:
“WORKER: Hi I think we will have a mental health day tomorrow, can’t handle the stress, and the death stare we got from [the trainee’s mother] there was no need for
SUPERVISOR: Well you will both be sadly missed.
WORKER: So are you sacking us”
The supervisor did not respond.
The worker then texted the company’s director:
“WORKER: I think [the supervisor] just sacked us is that right?”
The director did not respond.
A few days later the worker texted the supervisor again, before the couple were due to return to work:
“WORKER: What’s our job for tomorrow
SUPERVISOR: Hi [worker] Have no work for you, you are welcome to see [the director] & I in the office tomorrow afternoon Regards [supervisor]
WORKER: Hi [supervisor] What time do you and [the director] want this meeting?”
The supervisor did not respond.
The worker then texted the company’s director the following day:
“WORKER: [The supervisor] said we were having a chat with you today regarding work what time do you want us there”
The director did not respond.
Commissioner Hunt found this silence “callous”.
“I accept Coast Cat’s submission that it did not have access to dedicated human resources personnel or expertise at the time of [the workers’] dismissal.
“Nevertheless, it is entirely appropriate and a reasonable expectation to invite [the workers], a couple, to a meeting to discuss any performance or conduct concerns,” she said.
“It is quite callous to simply ignore the applicants on their return from leave, knowing that they would both be reliant on income from Coast Cat for their combined living expenses. This is true even if there was no immediate work for the Kanga.
“This could and should have been explained in person.
“Whilst I consider the complaints against [the workers] to be very serious, including the effect on the safety and welfare of other workers as is required by [the Fair Work Act], I do not consider that at any early stage in the employer’s investigation of the matter, there was a valid reason for the dismissal.
“Nor do I consider the temporary lack of work for the Kanga a valid reason for the dismissal.
“I conclude that the dismissal of each of [the workers] was harsh, unjust and unreasonable.
“Accordingly, I find that each of [the workers] was unfairly dismissed.”
Commissioner Hunt ordered the employer to pay the workers $1,890.70 and $357.70 respectively, plus superannuation.
She made no deduction for misconduct.
“Whilst I have been critical of each of [the workers’] conduct, I have decided against drawing a conclusion that it constituted misconduct,” Commissioner Hunt said.