20 December 2013
Practice Group(s):
Labour, Employment
and Workplace Safety
Fair Work Commission Dismisses Unfair Dismissal
Claim Involving False Bullying Allegations
By Christa Lenard and Matthew Parker
In handing down its recent decision in Hunter v The Commonwealth of Australia, represented
by the Department of Sustainability, Environment, Water Population and Communities [2013]
FWC 7917 (Hunter v Commonwealth), the Fair Work Commission (Commission) has ruled
that an employee's dismissal was not harsh, unjust or unreasonable on grounds that, by
making vexatious allegations of misconduct against his manager, the employee acted in a
way that was "deliberate, and seriously unsatisfactory and deceptive".
Facts
The employee (Applicant) commenced employment with the Department of Sustainability,
Environment, Water Population and Communities (Department) on 20 August 2008 in the
position of Indigenous Land Management Facilitator. Some time later, another Department
employee, with whom the Applicant had a poor relationship, Mr. Bensley, commenced as the
Applicant’s direct manager.
In his role as the Applicant's manager, Mr. Bensley conducted the Applicant's mid-term
performance review. After interviewing the Applicant as part of this review, Mr. Bensley sent
an email to him stating, among other things, that the Applicant's performance "need[ed]
development".
As a result of this review, the Applicant compiled a detailed grievance document alleging that
Mr. Bensley had displayed threatening and bullying behaviour towards him which had
resulted in "psychologically injury" (Grievance). He subsequently lodged a claim for workers
compensation with Comcare. Following its receipt of the Applicant's Grievance, the
Department took steps to investigate the Applicant’s complaints under the APS Code of
Conduct.
During the investigation, the Department formed the view that “there was doubt over the
veracity of Mr. Hunter’s allegations and suggested that they had been made falsely”. In light
of this, the Department conducted a further investigation under the APS Code of Conduct
into the Applicant and the allegedly false complaints.
During this second investigation, it was discovered that the Applicant, along with other
Department employees, had made false allegations of bullying and harassment in order to
convince the Department to terminate Mr. Bensley's employment. Emails were discovered
from the Applicant to another employee stating that the Applicant would "play the indigenous
card" as a way of achieving this aim.
Fair Work Commission Dismisses Unfair Dismissal Claim Involving False
Bullying Allegations
The Department found that the Applicant's Grievance was false and vexatious and his
employment was subsequently terminated along with another employee who made false
claims against Mr. Bensley.
Decision
The Commission ultimately found that the Applicant's conduct "demonstrated a significant
and deliberate lack of honesty and integrity in the course of his APS employment” and
upheld the Department's decision to terminate his employment.
While the Applicant claimed that the Department's investigation in to his conduct was
procedurally flawed, namely that he had not been allowed to use witness statements from
two colleagues who could attest to the bullying behavior of Mr. Bensley, and the allegations
against him were unproven, the Commission decided that the Department took appropriate
steps in investigating the matter. Despite some minor procedural deficiencies that were
identified, the Commission found that altering the investigative process would not have
changed the outcome for the Applicant.
It was, therefore, concluded that the reasons for the Applicant's dismissal were well founded
and defensible.
The Commission did not have jurisdiction to make any findings in relation to the Applicant's
Comcare claim, which is currently before the Administrative Appeals Tribunal. Accordingly,
the Commission did not make findings in relation to the Department's allegation that in
making the compensation claim, the Applicant provided false and misleading information to
Comcare in order to gain the benefit of compensation.
What Does This Mean for Employers?
With the new anti-bullying amendments to the Fair Work Act 2009 (Cth) due to commence
on 1 January 2014, workers will soon be able to bring bullying claims against not only their
employer but other persons in the workplace.
While many bullying claims may be genuine, there is still a risk for employers that a rogue
worker may try to use the new bullying laws to satisfy an ulterior motive (for example, to be
moved away from an undesirable position or department, or to invite disciplinary action
against a colleague with whom they have a dispute).
For this reason, it is imperative to ensure that investigative processes are thorough and all
reasonable steps are taken to properly determine the veracity of any bullying claim. If the
investigative process is flawed and false bullying claims are allowed to occur, an employer is
at risk of further claims from employees falsely accused of bullying. Furthermore, inadequate
responses to any bullying claim can only have a negative impact on morale and workplace
culture.
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Fair Work Commission Dismisses Unfair Dismissal Claim Involving False
Bullying Allegations
Authors:
Christa Lenard
christa.lenard@klgates.com
+61.2.9513.2445
Matthew Parker
matthew.parker@klgates.com
+61.2.9513.2491
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©2013 K&L Gates LLP. All Rights Reserved.
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