Should a supervisor be held to a higher standard of conduct?

How will Fair Work view a termination decision for misconduct that includes inappropriate language where the workplace culture normally tolerates it. Are employees in supervisory roles held to a higher standard of conduct?

One Minute Summary

In this Employee Relations Update we examine a supervisor terminated for acting in an intimidating manner and using strongly inappropriate language. The employer had not acted on his conduct until a complaint was received effectively condoning his behaviour for some time. This will normally require a more thorough termination process to reverse what was previously acceptable behaviour.

The matter is also more complex because the workplace has a culture of tolerating inappropriate language.

The Commission commented on the higher obligations of proper conduct placed on a person in a supervisory role: “As a supervisor he had a responsibility for the welfare of his direct reports and an obligation to treat them and other employees with dignity and respect.”

The Commission commented on the inadequacy and drawn-out nature of the investigation disciplinary process but ultimately found the dismissal was not unfair given the nature of the conduct.

The Fair Work Commission has examined whether supervisors should be held to a higher standard of conduct and how a workplace which allows regular swearing will impact a termination for someone using profanities.

We all know that some workplaces are less advanced culturally and use rougher language than others. While this is not preferred it may also have a legal impact in defending an unfair dismissal case, where one of the key conduct issues was that person’s use of inappropriate language including profanities.

Mr Daws was a diesel mechanic appointed in a supervisory position for an employer servicing farming equipment. He supervised a number of staff including apprentices and was responsible for allocating their work tasks.

One of these employees raised a formal complaint about his conduct including acting in an intimidating manner, making frequent disparaging comments about female employees, belittling employees for minor issues, allocating dirty work to employees who he did not like and consistent name calling. After the complaint was raised with him, he was on the warpath to determine who had ‘snitched’ on him standing over employees and deliberately intimidating them with his larger frame. The employees stated they would ‘walked on egg-shells’ whenever he was close by. Over time several employees had left due to his conduct.

The Service Manager, to whom Mr Daws reported, placed him on a performance management plan with the intent to educate him about language and effective communications in the workplace.

Following the complaint, and before the initiation of the performance management plan, an investigation process was initiated.

When his manager organised a disciplinary meeting, he complained about her involvement in the meeting after which she excused herself and allowed the Territory Manager, Mr Heath, to lead the process thereafter. In the disciplinary meeting with Mr Heath, Mr Daws rejected all the allegations and became quite angry stating management were out to get him.

The Territory Manager raised the fact Mr Daws had signed a contract referring to the requirement for Mr Daws to comply with the Bullying and Inappropriate Behaviour Policy and the Code of Conduct. In response Mr Daws blatantly denied engaging in any of the conduct that the policies sought to address.

After being suspended with pay from the workplace Mr Daws filed a Fair Work Anti-Bullying Complaint against various staff on 27 August. On 3 September he was informed that that the employer had formed the view that he was guilty of serious misconduct and provided with a further opportunity to respond.

On 9 October Mr Heath met with Mr Daws to discuss the bullying complaint which Mr Daws. At the same meeting he was presented with a summary of the investigation findings.

After a follow-up meeting on 15 October, where Mr Daws responded to the investigation findings, he was terminated.

Mr Daws subsequently lodged a worker’s compensation claim for stress resulting from the conduct allegations against him.

During the Fair Work Unfair Dismissal arbitration hearing Mr Daws took the position of denying the allegations, denying he had ever seen his employment contract and stating he was not aware of the policy content despite attending training. He contended that management were out to get him.

In his Decision the Commissioner stated Mr Daws performance in the witness box was ‘less than impressive’ and stated he was belligerent in how he responded to certain questions posed to him.

The Commissioner also provided commentary on the level of swearing at this workplace. He stated senior management swore regularly and in a harsh manner and failed to admonish other employees for use of grossly inappropriate language. It was difficult to then discipline Mr Daws about his language while this was generally allowed by other employees including managers.

Nonetheless the totality of Mr Daw’s behaviour and the evidence indicating he should have been aware of the required conduct through the two policies provided sufficient basis to state the decision to terminate was not unfair.

The Commissioner also stated Mr Daw’s conduct represented a significant breach of his supervisory obligations. As a supervisor he had a responsibility for the welfare of his direct reports and an obligation to treat them and other employees with dignity and respect.

The Commissioner also commented on the inadequacy of the investigation and discipline process stating “the Respondent’s HR personnel lacked a detailed knowledge of employment law, and this may have impacted on the process followed in affecting the dismissal”.

Commentary

Examining the duration and haphazard nature of the investigation process and the protracted discipline process which ultimately resulted in termination, it is possible that the depth of Mr Daws negative conduct outweighed the inadequacies of the investigation and discipline process in getting this decision across the line. Less intense conduct by Mr Daws may have resulted in a different outcome. There is no excuse for an investigation process which only involved one site and one key person to take this long. It was interesting to note that the employer formed the view that he was guilty of serious misconduct on 3 September – a month before the investigation was completed and findings presented to him.

Another interesting observation relates to the employment contract and the two key policies mentioned above. Firstly, the employment contract was inadequate in relation to conduct expectations. Conduct expectation clauses in contracts are essential in that they often carry more weight than those in broader policies. Secondly, while the workplace had policies on appropriate conduct it would appear that sections of those policies were disregarded by management and employees alike particularly in respect to language used.

If the termination had only been based on Mr Daws inappropriate language, it’s possible the decision may have been different give the acceptable nature of swearing at this workplace.

What became clear from this Decision is that Mr Daws had been permitted to indulge in his negative behaviour for some time with no repercussions. When a formal complaint was submitted the employer felt obligated to act. It would appear the performance management plan was a weak response focussed on educating him about his language. Employers often don’t know how to deal with (‘confront’) difficult behaviours.

There are several problems with ignoring difficult behaviours. Firstly, if there are no repercussions the employee becomes more brazen. (Others may then start to behave in the same manner.) Secondly, accepting such behaviours for a period of time can be interpreted as condoning those behaviours making a termination more complex.

It is recommended that employers seek professional advice in relation to termination decisions to minimise the risk of large compensation payments for simple errors.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au