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Workplace Disputes: tips from Acumen Lawyers’ Brad Petley, part 1.

Workplace conflict is one of the biggest causes of employee and employer stress and it is no wonder that any disputes should be handled efficiently to prevent harming productivity and damaging team harmony.

Brad, from Acumen Lawyers, provides a case study that looks into handling disputes and useful lessons for employers.

 

CASE 1 – A dispute between Ms. Luckman and her employer.

Ms. Luckman worked in a permanent part-time capacity for a property management company. Her role involved managing a portfolio of properties, including sales and leasing.

Two disputes arose during Ms. Luckman’s employment:

First Dispute

Ms. Luckman considered that she had a full-time workload although she was working in a part-time capacity. She based this on the amount of properties she was expected to manage.

The dispute was resolved after Ms. Luckman raised this issue with her manager.

Second Dispute

The second dispute arose over a management decision that Ms. Luckman would be managing two new properties in addition to her normal duties.

Ms. Luckman objected to management’s decision on the basis that, although she would be burdened with the responsibility for managing the properties, she would be effectively denied the associated sales commissions because each sale would occur during hours when she was not at work.

Later that day, Ms. Luckman was invited to a meeting with the employer’s General Manager, Mr. Walker.

Meeting – 13 August 2015

During the meeting, Mr. Walker explained the reasons for the decision and advised that he did not consider the transfer of work to her as unusual or uncommon.

Ms. Luckman disagreed with Mr. Walker’s explanation and at the conclusion of the meeting made comments along the lines of “I’m done, I’m over it, I’m out of here”.

Email exchange

After returning to her desk, Ms. Luckman sent Mr. Walker an email which included the following:

“Further to our meeting today, as I feel there is nothing more to discuss, it would be appreciated if the files could now be handed over so I can continue the management of those properties”.

Mr. Walker responded by email which included the following:

“You may feel there is nothing more to discuss, but there is. It’s nothing to lose sleep over but I will make time for us to meet again”.

Dismissal

On 20 August 2015, Ms. Luckman was invited to a further meeting with Mr. Walker.

At the start of the meeting Mr. Walker read out a letter terminating Ms. Luckman’s employment. The letter advised “misconduct” as the reason for Ms. Luckman’s dismissal.

 

Unfair dismissal claim

Ms. Luckman challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission (FWC).

 

The verdict

The FWC ultimately found the dismissal to have been harsh and unreasonable and thus unfair.

Conduct not inappropriate

The FWC considered that the conduct of Ms. Luckman in the meeting did not amount to a valid reason for her dismissal.

Although observing that Ms. Luckman had been angry and hostile during the meeting of 13 August, the FWC recognised that there had been no use of inappropriate or foul language, or threatening or abusive behaviour, by either party.

The FWC also recognised that Ms. Luckman’s email to Mr. Walker immediately after their meeting demonstrated that she was ready to follow the instruction about the management of the two properties in question.

 

In particular, the FWC commented:

“The meeting on 13 August 2015 was a robust discussion where an employee had the courage to voice her disapproval over the way that she perceived she had been victimised over the last four years.

The mere fact that there was no swearing or threatening language used solidifies the view that Mr. Walker’s decision to terminate Ms. Luckman’s employment was a monumental overreaction”.

 

Robust workplace discussions

Importantly for employers, the FWC made the following observation about robust discussions between employers and employees:

“Robust discussions between employees and employers are a part of the Australian industrial landscape.

The notion of master/servant where an employee is not allowed to question the decision of the employer disappeared with the industrial revolution”.

Ultimately, the FWC handed down a decision of unfair dismissal.

As to the question of whether Ms. Luckman could be reinstated, the FWC rejected a claim by the employer that there had been a breakdown of trust in the employment relationship.

 

Lessons for employers

  • Robust workplace discussions between an employer and employee are an accepted feature of the Australian employment landscape.
  • An employee may raise a workplace issue directly affecting him/her providing it is raised in an appropriate way.
  • Employers are not entitled to deem the mere raising of workplace issue as misconduct or insubordinate behavior.

 

About the author

Brad Petley is the Principal of Acumen Lawyers, a boutique employment and safety legal practice based in Brisbane but happily solving workplace issues for clients Australia-wide.

Email: brad@acumenlawyers.com.au

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to provide legal advice. No reader should act or rely on the basis of any matter contained in this publication without first obtaining specific professional advice.

This article is copyright. For permission to reproduce this article please email your request to: info@acumenlawyers.com.au.

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