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Mediation not reasonable with sacked worker

When a worker with numerous safety complaints posted comments on political and government matters on Twitter, contravening his employer’s code of conduct, he was sacked. Read why the FWC supported the employer.

28 Feb 2024

Gaby Grammeno

Contributor

The worker was employed from June 2021 by Wage Inspectorate Victoria (WIV) as a child employment authorised officer. Before his transfer to WIV he’d been a union delegate for two years and a health and safety representative for one.

The worker’s alleged injuries

He claimed he’d sustained three workplace injuries. The first alleged bullying by the then director of the wage inspectorate within Department of Premier and Cabinet (DPC) where the worker was employed at the time. His second claim alleged sustained ‘adverse treatment’ including bullying and discrimination. He took two weeks’ leave and lodged a WorkCover claim for this in May 2021.

He raised various WHS concerns with the Deputy Secretary of DPC, citing data from a survey and workers’ WHS concerns. He said there was an ‘ingrained negative culture’, breaches of equal opportunity laws and the code of conduct, and that the employer had been in breach of its duty to maintain a safe workplace since 2019, leading to high stress levels and a culture where employees could not raise concerns.

His third injury, he claimed, arose from ‘adverse treatment’ by management, and also ‘vicarious trauma’ from hearing colleagues and union members recount their stressful experiences and fear of management. He said that WIV ignored his repeated attempts to raise and discuss WHS issues.

Allegations against the worker

In February 2022 WIV informed him that two allegations of misconduct had been raised against him and that he was stood down pending an investigation.

The first allegation concerned his Twitter posts, and the second was that during a meeting he’d divulged personal health information of a former employee who was not present, and that after the meeting he’d harassed another employee who’d expressed concern about his conduct.

The WIV commissioner also stated that the worker had argued aggressively with him, blocking his exit from the building and expressing his views in a forceful and incoherent manner.

The commissioner was very concerned about tweets apparently made by the worker, claiming a certain political party was ‘full of dishonest degenerates’, ‘truly cruel often evil people’ and that the government was ‘very dangerous to our and our children’s futures’. He considered these matters warranted suspending the worker.

In March 2022, an investigator invited the worker to attend an interview, but on the day of the interview he was unwell and took leave. Over the next 18 months, he provided medical certificates saying he was unfit to attend work, and unable to participate in the investigation into the allegations against him. He also submitted a second WorkCover claim, this time in relation to his third injury, and the claim was accepted.

Three months later he was advised that the WIV had taken a number of measures in the previous year to improve WHS conditions, that his complaints were considered baseless and WIV would not investigate them further. The worker then referred his complaints to WorkSafe.

In April 2023 WorkSafe advised him that their investigation had found that WIV was providing a safe workplace.

The worker’s psychiatrist provided a medical report saying he could return to work if the parties undertake a mediation process, but WIV refused to agree to this and instead directed him to undergo an independent medical examination.

The worker complied, and the resulting medical report recommended that the parties undergo mediation for three months. The worker saw this as a condition for his return to work. The report also stated that there should be changes to ‘reporting process or people’ and that the worker was not able to return to the current management structure ‘headed by his boss, … the commissioner’.

Employer refused mediation

WIV declined to engage in mediation, noting that they’d already acted on his concerns, that there was no guarantee mediation would resolve the issues, that participating in mediation could have a negative impact on the worker and others, and that changing management was not a reasonable measure.

WIV’s letter also noted the worker had been absent from work on paid and unpaid leave for 18 months and that his most recent medical certificate stated he was still unfit for work and could not participate in the investigation into his conduct. The letter invited him to explain why he should not be dismissed on the basis that he was unable to perform the inherent requirements of his role.

The worker responded to the show cause letter saying he believed his complaints had not been properly addressed, that WIV had made no effort to facilitate his return to work and he was concerned he could be injured again if he returned to work.

He was dismissed In September 2023 and applied to the Fair Work Commission, claiming his dismissal was unfair.

In the Commission

On reviewing the evidence, FWC Deputy President Alan Coleman found that WIV’s decision not to engage in mediation was reasonable, as there was no reasonable prospect of a successful outcome, it would have been unreasonably burdensome on WIV, and there were valid concerns about the wellbeing of workers who might be required to participate in mediation. Moreover, it would have been ‘disingenuous’ for WIV to participate in mediation when it regarded the worker’s complaints as groundless. WIV’s refusal to participate in mediation did not render the dismissal unfair.

DP Coleman found that WIV had a valid reason for dismissal, as after 18 months of incapacity there was ‘no reasonable and imminent prospect of [the worker’s] return to capacity’.

The worker’s public statements on Twitter clearly contravened the relevant code of conduct, which required public sector employees to ‘conduct themselves in an apolitical manner’ and ensure that their comments ‘do not compromise their capacity to perform their public sector role in an unbiased manner’ or ‘bring their public sector employer or the public sector into disrepute’.

The investigation into all of the allegations against the worker was put on hold as a result of his unfitness to work. He had been notified of a valid reason for dismissal and given an opportunity to respond. There had been no connection between his raising of safety concerns and his dismissal.

Though the worker ‘appears to see himself as a champion of workplace safety’, he ‘lacks insight into the effect of his behaviour on other people,’ DP Coleman said.

The Commission found the dismissal was not harsh, unjust, unreasonable or unfair, and dismissal the application.