By Gaby Grammeno Contributor

The worker was employed as a harvest team leader on a mushroom farm. 

In May 2024 she received a letter from the company’s CEO saying that serious allegations of bullying had been raised against her and that she’d be stood down with pay pending an investigation. 

She asked for details of the allegations and a week later she received a letter setting out eight allegations to which she was invited to respond in writing.

It was alleged that she’d bullied workers in her team and discriminated against some individuals because of their religion or ethnic origins. The complaints included reducing one worker’s hours, raising her voice at another and obliging others to do things felt were inappropriate, like cleaning toilets.

The employer concluded she’d bullied and discriminated against numerous employees, and she was summarily dismissed.

She claimed there was no valid reason for her sacking and made an unfair dismissal application to the Fair Work Commission, seeking compensation.

In the Commission

The employer claimed there was compelling evidence that the worker had engaged in a pattern of bullying and discrimination of employees, which made her continuing employment unsustainable. They claimed there was a valid reason for her dismissal, that there was a fair process, and that the dismissal was not harsh, unjust or unreasonable, and therefore not unfair.

On considering the evidence, however, Deputy President Alan Colman formed the view that the allegations were based on unsubstantiated hearsay, that assertions about the alleged misconduct were ‘hopelessly imprecise’ and not backed up by direct evidence. 

For example, one witness was simply reciting what another worker had allegedly told him, namely that she ‘felt’ discriminated against because of her religion, but there was no explanation as to why she would have felt that way, and no evidence that the worker had actually done anything wrong.

The worker’s refutation of the company’s assertions was clear and convincing, and Deputy President Colman accepted it.

The employer appeared to believe that the sheer number of allegations against the worker presented a persuasive case of guilt. But the evidence was scanty, largely second-hand and based on hearsay.

Deputy President Colman concluded that the allegations of bullying, discrimination and inappropriate conduct were unsubstantiated, and that therefore there was no valid reason for dismissal. It was unjust, unreasonable and unfair.

Reinstatement was not appropriate as a remedy, given that the worker wasn’t seeking it. She was asking for payment of her entitlements and six months’ compensation. 

The Deputy President considered that had she not been dismissed, she would probably have worked for at least another six months. Six months’ salary would have grossed her about $31.5K.
However, the worker had apparently made no attempt to apply for any jobs since she was sacked. The Fair Work Act requires the Commission to consider what efforts the unfairly dismissed person has made to mitigate the loss they’ve suffered because of the dismissal – in other words, to make up for it or take action to deal with it. In this case, that should have entailed looking for another job.

The worker said she was too scared to seek work because her husband had been threatened by the maintenance manager to leave the company alone, but the Deputy President pointed out that looking for a new job had nothing to do with her former employer. She also said she worried the employer would give her a bad reference, but the Deputy President said this was no excuse for not looking for work.

If the person makes no effort to find another job, at some point their lack of income is due to their failure to apply for jobs, rather than to having been sacked.

This substantially reduced the amount of compensation she was entitled to. Deputy President Colman decided that compensation should be confined to the six-week period during which her lack of income was mainly due to having been dismissed. He ordered that she be paid $7269 plus lost superannuation for the period.

What it means for employers

If an employer receives allegations of bullying or discrimination for a prohibited reason, the appropriate response is to investigate the matter and reach a reasoned conclusion as to whether, on the balance of probabilities, the allegation is actually true. It is unreasonable and unfair to presume that it is. The fact that there may be multiple allegations does not lower the standard of proof.

Read the decision

Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd [2024] FWC 2784 (7 October 2024)