Will this business finally deal with this problem employee?

Key learnings for employers

Despite Australian workplace laws being designed to protect employees’ employers should not tolerate unacceptable behaviours due to a risk of their termination decision being challenged.
Other employees in the workplace should not be left to suffer as the negative behaviour of one employee is tolerated because they have certain specialist skills.
In this case the employees not seeking the help of the maintenance fitter could lead to potentially serious safety incidents as they try to rectify problems themselves.
The Fair Work Commission could decide the employer had a valid reason for a termination but decide the termination was unjust due to the age of the employee and the chances of them finding alternative work.
The Fair Work Commission does not look favourably on employers who have accepted an employee’s undesirable behaviours for a long period and then suddenly decided to act on it.

Hunter Employee Relations recently undertook a bullying investigation for a Sydney client. The incident occurred at one of its process plants. The plant has traditionally attracted a largely unskilled ethnic female workforce with many employees finding a job there through existing employee connections.

Is it really bullying?

Before we look at the detail a brief reminder of what constitutes bullying.

Bullying is repeated unreasonable behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to a person, or group of persons, which creates a risk to health and safety.

Some examples of bullying behaviours include

abusive, aggressive or intimidating conduct
offensive, insulting or abusive language directed at a person
spreading gossip, misinformation or malicious rumours
behaviour or language that frightens, humiliates or degrades
criticism delivered by yelling and screaming, or through sarcasm or insults
persistent and baseless criticism

Written Complaint

A young female employee had provided a written complaint to the site manager which triggered the investigation. Through further discussions with her it became clear the employee was not distressed but had taken it upon herself to write up the complaint on behalf of herself and other employees at the plant. In the interview she provided the following insights:

It was fitter’s job to set up the process machines and then to assist the operators with troubleshooting whenever it wasn’t running properly. The fitters are the technical experts on the process machines. The process machines were old and require regular attention while running.
Whenever any of the operators asked the day shift fitter (Joe) for help he either ignored them or whinged at the operators stating it was their fault or he took a condescending approach to belittle them and make them feel inferior as he explained the issue at hand in a confusing way.
Alternatively, when being told of a problem, Joe would glare at the operator or motion aggressively with his arms and then walk off leaving operators wondering what to do next and whether Joe would assist.
When an operator informed the operations supervisor that ‘it was hard to get a clear answer from Joe and that his attitude was foul’ the supervisor immediately informed the fitter after which both of them confronted the operator. When the operator repeated what she had said with Joe present she was told sternly by the supervisor to “settle down” and that Joe was not being rude. The supervisor stated she had never seen Joe be rude to anyone.
The fitter and the operations supervisor were best mates often standing together in the production area chatting for long periods of time. At times they watched as employees wrestled with the process equipment as it played up or stopped but did not offer any assistance. At times when the employee asked the fitter for assistance he told the operator “To give the machine a wipe over to clean it”. He then watched and smiled as the employee tried this and obviously the process line problem wasn’t fixed.
The afternoon shift fitter is far more cooperative with the operators and the process line runs with less hiccups. The result is a higher output on the same product run.
The Plant Manager had asked the Maintenance Manager to ‘have a talk with Joe’ several years ago. While a discussion did take place it was low key and with no real clarification of expected behaviours.

In summary the fitter was unapproachable, rude and displayed minimal interest in keeping production running smoothly. It would appear he felt safe in his job due to his expertise on the process line.

This has been happening for some years.

Consider the followingConsider the following

Operators avoiding asking Joe for help could lead to potential safety issues if they try and fix problems themselves.
Some of the day shift operators who spoke little English were reported to be quite scared of Joe because of his behaviours.
The longer-term mental health impact on the operators who try and do a good job but do not have support from their line supervisor.
Operators have left and sought employment elsewhere.
Day shift production output is always well behind afternoon shift output.

Next steps - factors to consider

The fitter had been working there for quite some time and developed expertise on the production lines. He would be difficult to replace.
The organisation has been accepting his behaviour for some time making minimal attempts to address it.
The fitter was in his mid-50s. While this doesn’t preclude performance management, it does make a potential termination more risky. You could end up with a Fair Work Commission decision that states the termination was fair but also unjust – due to the employee’s age and therefore limited prospects to find alternative employment. This must be taken into account in planning any discipline or termination scenario.
The factors of ‘unapproachable, rude and minimally interested in keeping production running smoothly’ can be quicksand evidence in any formal hearing. This needs to be carefully handled as it will end up as one opinion against another opinion.
The factors of ‘unapproachable, rude and minimally interested in keeping production running smoothly’ can be quicksand evidence in any formal hearing. This needs to be carefully handled as it will end up as one opinion against another opinion.
In any formal disciplinary process you can expect the supervisor to support Joe.
The supervisor, who is best mates with the fitter, is obviously not doing her job. She needs to be removed from that position. This obviously presents a range of other problems which we won’t focus on here.
The maintenance manager is not providing the correct form of behavioural guidance to the fitter.

This problem is not insurmountable and cannot be allowed to continue.

So was this bullying?

While some elements of the behaviour are heading in the direction of bullying this is an ongoing behavioural issue. This is an employee with attitude and performance issues.

An opportunity from the investigation interview

During discussions with the complainant employee it came to light that the fitter, when he is actually doing his job, regularly breaches safety guarding rules by not isolating a running machine when clearing jams etc.

The next step is to gain more concrete evidence of this safety breach. Solid evidence of breaching a well-publicised plant safety rule is a more certain pathway for disciplinary action and potential termination. The preferred evidence would be video footage of this breach taking place, however this also raises multiple (legislative) hurdles about workplace surveillance which need to be addressed or the video footage may not be admissible as defence evidence in any legal proceedings.

This case is not unusual. If handled incorrectly it can become quite messy in any formal Fair Work proceedings. In unfair dismissal cases the legal obligation is on the employee to prove the termination was unfair but in reality it’s the employer who ends up proving their actions were warranted and fair. In General Protections proceedings the employee simply makes an assertion and the employer must prove their actions were warranted to disprove the employee’s assertion.

Managers often avoid dealing with such a matter as they do not feel confident about the procedural steps that must be followed. They are rightfully concerned about being dragged into a Fair Work Commission (or Federal Court) hearing and losing based on missing a key procedural step.

Australian industrial relations laws are complex and designed to protect employee rights. Terminations can a legal minefield which require some careful planning to get through.

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