Unfair Dismissal Applicant ‘Author of her own downfall’ – FWC

A former employee of Masonic Care Tasmania has had her application for an unfair dismissal remedy dismissed by the Fair Work Commission (FWC). The Applicant, who had been given the benefit of several warnings and a performance management plan, was ultimately dismissed over conduct concerns.

Background

The first incident was reported In June 2018 by a carer who alleged that the Applicant engaged in poor conduct and swearing in the organisation’s kitchenette and dining rooms. It was alleged that she swore and yelled at staff members in front of residents. At a subsequent meeting the Applicant admitted the behaviour was inappropriate and apologised for it.

Further allegations came to light in August of 2018, with Masonic Care writing to the Applicant and alleging that she had shouted at a clinical nurse and shaken her fists in anger. The letter further alleged that the Applicant also yelled at staff in the main kitchen, accusing them of stealing her jacket.  The allegations culminated with the assertation that the Applicant had shouted, ‘You can shove it up your arse’, in the presence of visitors whilst looking for her jacket.

Masonic Care resolved not to dismiss the Applicant over the incident but cautioned her that further incidents might result in her dismissal. But a further incident involving the Applicant in October 2018 resulted in Masonic Care commencing a performance improvement plan.

After the Applicant was reported for her behaviour at a Respect at Work training session, the matter was raised in a subsequent performance meeting on 29 November 2018.  It was alleged the Applicant had spoken over the training facilitator , been generally rude during the session and said that, ‘The pay here is shit’.  During the performance meeting, it was alleged the Applicant became aggressive and agitated. 

Masonic Care relied on the Applicant’s conduct in the 29 November meeting in writing to her and charting the history of events beginning with the June incident.  It stated that her conduct at the 29 November meeting may represent a breach of its policies, standards and values.  Masonic Care asked the Applicant to respond to its concerns in writing and to attend a meeting on 19 December.  The Applicant did not provide a written response or attend the meeting and Masonic Care proceeded to determine the matter in her absence.  It terminated the Applicant’s employment, in writing, on 19 December.

What the FWC found

Deputy President Barclay of the FWC found the allegations against the Applicant had been made out.  The Deputy President found the Applicant’s behaviour had on repeated occasions breached the Masonic Care’s policies and guidelines by:

  • Failing to treat her colleagues with fairness, dignity and respect
  • Failing to treat staff with respect, courteousness and in a professional manner
  • Failing to deal with everyone with politeness
  • Failing to ensure her behaviour did not cause offence to anyone
  • Failing to speak in an appropriate tone
  • Using bad language and making inappropriate comments
  • Failing to be accountable for her behaviour.

The Deputy President concluded that the behaviour was sufficiently serious to justify dismissal and amounted to a valid reason for dismissal. Moreover, the Deputy President found the Applicant’s conduct in the witness box to be ‘somewhat argumentative’, stating that the Applicant, ‘did not seem to appreciate when her behaviour at the workplace was inappropriate’.

Summarising his decision, Deputy President Barclay concluded that Masonic Care had taken all the necessary steps to warn and counsel the Applicant. His Honour found the behaviour was ‘inappropriate, rude and repeated’, asserting that the Applicant was the ‘author of her own downfall’.

Cook v Masonic Care Tasmania [2020] FWC 356