Latest decisions

  • An unusually close relationship between an employee and employer nullifies bullying claim

Ms McCutcheon, who was employed as an area manager with a wine wholesaler alleged that she was subjected to repeated unreasonable behaviour during the course of her employment. Amongst the allegations, Ms McCutcheon claimed that the wine wholesaler’s Managing Director, inappropriately remarked on her appearance and her boyfriend and requested medical records to verify sick leave. Ms McCutcheon also claimed that she was belittled in front of clients when she failed to order wines for a winemaker’s function. Deputy President Beaumont held that the failure to order the wines was a further example of Ms McCutcheon’s underperformance but that the Managing Director’s comments in front of others at the function was unreasonable. However, that was the only instance in which the Managing Director’s conduct was held to be unreasonable and Deputy President Beaumont found that she was satisfied on the evidence before her, that bullying had not occurred during Ms McCutchen’s employment.

Deputy President Beaumont noted that “both parties had fostered a level of familiarity which may have exceeded that usually found in an employment relationship”, which provided “context” for the Managing Director’s comments about Ms McCutcheon’s boyfriend and her appearance. The Deputy President further held that the management action does not have to be perfect to be considered reasonable and a course of action may be reasonable “even if particular steps are not”. The bullying application was dismissed.

The implications for employers

The case demonstrates that employers should consider the following:

  • maintain boundaries between professional and personal lives in the workplace;
  • ensure policies are in place regarding employee grievances and disciplinary action to manage employees' expectations and to guide management action;
  • avoid commenting on an employee’s dress or appearance unless it is directly related to their position (such as adhering to a uniform or dress code policy) or has implications for their performance; and
  • ensure that any adverse comments about an employee’s performance are dealt with as performance related issues in a private performance management meeting.

Panetta McGrath Lawyers represented the Respondents.  To read the full decision, click here.

  • Bullying appeal rejected by the Full Bench

This case was discussed in Edition 13 and has since been appealed by the employee, Mr Blagojevic. Commissioner Saunders initially dismissed Mr Blagojevic’s unfair dismissal claim who argued that the successive performance management plans put in place by his employer, AGL Macquarie Pty Ltd were not reasonable, and therefore constituted bullying. Commissioner Saunders however, held that the initial performance plans and the revised performance plans were put in place in a “genuine attempt to improve Mr Blagojevic’s performance” and was “reasonable management action carried out in a reasonable manner”. This view was upheld by the Full Bench who was “not satisfied that it is in the public interest to grant permission to appeal” as no “arguable case of an appealable error on the part of the Commissioner” was established by Mr Blagojevic. The appeal was therefore refused.

To read the appeal decision click here.

  • Dismissal for providing misleading information on CV

Mr Tham, who was employed by Hertz Australia Pty Ltd (Hertz) as a vehicle services attendant argued that his dismissal was unfair because he had already notified the employer of the inaccuracies on his resume which he conceded “were mistakes” prior to commencing his employment. The employer’s HR manager Ms Lucchesi became suspicious of a workers’ compensation clam Mr Tham lodged only 2 months after he started. She later discovered that Mr Tham had lodged claims against 3 previous employers including Fair Work Commission and Federal Circuit Court proceedings, coupled with various complaints against Hertz with WorkSafe and the Fair Work Ombudsman. It was later discovered that Mr Tham had listed his experience with a previous employer from August 2010 to September 2015, when in fact he was only there until June 2011. After Mr Tham received his first written warning and a letter outlining the allegations against him the employer decided to dismiss Mr Tham as he failed to attend the scheduled meeting to discuss the allegations.  Notwithstanding the fact that Commissioner Harper-Greenwell found that the employer had failed to provide Mr Tham with a sufficient opportunity to respond, the Commissioner held that it was unlikely to alter the outcome. The Commissioner found that Mr Tham’s dishonesty “when considered in its totality, represents matters which were fundamentally inconsistent with the continuation of the employment relationship”. His dismissal was therefore not harsh, unjust or unreasonable and the application was dismissed. To read the full decision, click here.