15 January 2015
Former Employees Behaving Badly
Australia Labour, Employment and Workplace Safety Alert
Practice Group:
By Belinda Copley
Labour, Employment
and Workplace Safety
Commonly, dismissed employees behave badly post-dismissal. Not only does bad
behaviour post-dismissal often confirm an employer's difficult decision to terminate the
employee's employment, it can also be used to defend an unfair dismissal claim,
including in relation to reinstatement.
While bad behaviour post-dismissal can often be frustrating and potentially damaging to
an employer's business, it can be useful in defending a reinstatement claim on the basis
that there has been a loss of trust and confidence such that it would not be feasible to reestablish the employment relationship.
Bad behaviour post-dismissal can also be used as part of unfair dismissal proceedings
to:
• discount the dismissed employee's credibility as a witness
• assist the Fair Work Commission in assessing compensation and contingencies,
particularly in relation to the likely time the dismissed employee would have remained
in employment, had his/her employment not been terminated.
Reinstatement Inappropriate in Light of Post-Dismissal Conduct
Compensation for an unfair dismissal in accordance with the Fair Work Act (Cth) 2009
must not be ordered unless the Fair Work Commission is satisfied that reinstatement is
inappropriate.
Disgruntled dismissed employees commonly make threatening phone calls to their
former employer, use foul language in post-dismissal communications, threaten violence
or negative publicity and make disparaging online comments about their former employer
and colleagues. This post-dismissal conduct can be relied on by employers to establish a
loss of trust and confidence making reinstatement inappropriate. An employer's success
in defending a reinstatement application on this basis of bad behaviour post-dismissal will
depend on its ability to establish:
1. the dismissed employee engaged in post-dismissal conduct that has resulted in a loss
of trust and confidence and that this loss of trust and confidence is soundly and
rationally based
2. a sufficient level of trust and confidence cannot be restored to make the employment
relationship viable and productive.
A loss of trust and confidence in this context relates to factors that are essential to
making an employment relationship workable and is different to the implied contractual
term of mutual trust and confidence.
Recent Decision
A former abattoir worker, Mr. Challinger, was dismissed by JBS Australia Pty Ltd (JBS)
for failing to comply with safety instructions and using threatening language, engaging in
Former Employees Behaving Badly
threatening behaviour and making personal attacks towards his manager when directed
to comply with those instructions 1. Mr. Challinger filed an unfair dismissal claim.
Following Mr. Challinger's dismissal and prior to the Fair Work Commission making a
decision in relation to his claim, he saw a number of former colleagues at a local pub. Mr
Challinger:
• told a former colleague to "F### off…" when the former colleague asked Mr.
Challinger how everything was going
• made derogatory statements about the group of former colleagues, including in
respect of their continued employment with JBS
• stared at the group of former colleagues in a way that made them feel uncomfortable.
JBS argued that the post-dismissal conduct broke the necessary trust and confidence
between the parties such that there would be no practical chance of re-establishing an
effective workable employment relationship between them. Further, the unwarranted and
abusive post-dismissal conduct was consistent with the conduct that led to the dismissal
in the first place and demonstrated Mr. Challinger's views about the company making
reinstatement inappropriate.
The Fair Work Commission was persuaded by the approach taken in an earlier case of
the Full Bench 2, including consideration of the following factors:
• a loss of trust and confidence is a relevant consideration when considering an
application for reinstatement, but not the sole criterion
• the onus of establishing a loss of trust and confidence rests on the party making the
assertion
• there may be a limited number of circumstances in which any "ripple on the surface of
the employment relationship will destroy its viability", however in most cases the
employment relationship is capable of withstanding some friction and doubts
• the fact that it may be difficult or embarrassing for an employer to re-employ a
dismissed employee is not necessarily indicative of a loss of trust and confidence so
as to make restoring the employment relationship inappropriate
• the primary question is whether there can be a sufficient level of trust and confidence
restored to make the relationship viable and productive.
Ultimately, the Fair Work Commission was not persuaded that a single brief incident that
occurred in a social setting between people who work in different areas of the JBS
workplace rendered reinstatement problematic on the basis of a loss of trust and
confidence.
In reaching its decision, the Fair Work Commission placed weight on the fact that JBS did
not lead direct evidence from managers and supervisors, who would be responsible for
directly supervising and managing Mr. Challinger if he was reinstated, about the impact
of the post-dismissal conduct on their trust and confidence in Mr. Challinger and the
impact of this loss of trust and confidence on business operations.
JBS was ordered to reinstate Mr. Challinger.
1
Scott Challinger v JBS Australia Pty Ltd (U2014/5789) 15 December 2014
Thinh Nguyen and another v Vietnamese Community in Australia t/as Vietnamese Community Ethnic School South
Australia Chapter [2014] FWCFB 7198
2
2
Former Employees Behaving Badly
Lessons for Employers
The reinstatement of Mr. Challinger highlights the need for employers wishing to defend
a reinstatement claim on the basis of post-dismissal conduct to establish that:
1. the dismissed employee has in fact engaged in conduct which has soundly and
rationally resulted in a loss of trust and confidence by the employer. Employers can
establish poor behaviour post-dismissal by:
a. conducting routine searches of email and internet activity for a period prior to and
immediately following the dismissal, including during any notice period or hand
over arrangements
b. maintaining file notes or records of any communication post-dismissal with the
dismissed employee which is aggressive, disrespectful or otherwise inappropriate
c. monitoring the dismissed employee's social media activity and maintaining records
of any inappropriate references by the dismissed employee to his/her former
employer or colleagues
d. obtaining statements from employees who have witnessed inappropriate behaviour
post-dismissal either within or outside the workplace.
2. reinstatement is inappropriate in light of the established loss of trust and confidence.
The Fair Work Commission decisions in this area confirm that it is insufficient to
simply assert that trust and confidence in a dismissed employee has been lost to
defend a claim for reinstatement. Instead, the claimed loss of trust and confidence
needs to be shown to have the effect of making the ongoing employment relationship
unworkable. To meet this evidentiary burden, employers should at least:
a. obtain evidence from those supervisors and managers who would be responsible
for directly managing the dismissed employee, if reinstated, about their lack of trust
and confidence in the dismissed employee as a result of the post-dismissal
conduct (and any other relevant factors)
b. obtain evidence about the feasibility (or lack of feasibility) in placing the dismissed
employee in another part of the workplace or under the supervision of another
manager who has not lost trust and confidence in the dismissed employee
c. put forward an assessment as to the effect that the loss trust and confidence would
have on the operations of the workplace
d. establish that it is not simply difficult or embarrassing to re-employ the dismissed
employee in light of the post-dismissal conduct, but instead that the necessary
level of trust and confidence cannot be restored to make the relationship viable and
productive.
3
Former Employees Behaving Badly
Author:
Belinda Copley
belinda.copley@klgates.com
+61.7.3233.1281
Anchorage Austin Beijing Berlin Boston Brisbane Brussels Charleston Charlotte Chicago Dallas Doha Dubai Fort Worth Frankfurt
Harrisburg Hong Kong Houston London Los Angeles Melbourne Miami Milan Moscow Newark New York Orange County Palo Alto
Paris Perth Pittsburgh Portland Raleigh Research Triangle Park San Francisco São Paulo Seattle Seoul Shanghai Singapore
Spokane Sydney Taipei Tokyo Warsaw Washington, D.C. Wilmington
K&L Gates comprises more than 2,000 lawyers globally who practice in fully integrated offices located on five
continents. The firm represents leading multinational corporations, growth and middle-market companies,
capital markets participants and entrepreneurs in every major industry group as well as public sector entities,
educational institutions, philanthropic organizations and individuals. For more information about K&L Gates or
its locations, practices and registrations, visit www.klgates.com.
This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon
in regard to any particular facts or circumstances without first consulting a lawyer.
© 2015 K&L Gates LLP. All Rights Reserved.
4