Fair Work gives fastening manufacturer all-clear to sack worker in “impossible situation” of staff feud
Friday, January 16, 2015/
The Fair Work Commission has rejected an appeal by a former fastening manufacturer employee over her unfair dismissal case, finding the employer was put in an “impossible situation” by her workplace conflict with another staff member.
Jacqueline Lumley was dismissed from Bremick Fasteners in Sydney in March last year, after a year-long history of conflict with another employee, Nikki Cook, with whom she worked in a small office space.
Lumley’s manager, referred to in commission documents as Mr Jamieson, sacked Lumley during a mediation meeting, which followed an altercation between the two employees about whose responsibility it was to perform a certain work function.
The commission found Jamieson had no intention of dismissing Lumley because of the incident, but was convinced to do so by Lumley’s comments during the meeting.
Jamieson alleges Lumley encouraged her dismissal by telling him, “Go ahead then sack me now, just sack me now”, and later “Just do it, sack me”.
But according to Lumley’s version of events, Jamieson said in the meeting he had to sack someone today, to which her response was “go ahead and do it”, not expecting it would be her and not Ms Cook who would be dismissed.
Previously, Lumley had made a formal complaint alleging bullying by Cook, but her claim was found to be unsubstantiated.
In July, Lumley brought an unfair dismissal case against Bremick before the Fair Work Commission, but vice president Graeme Watson dismissed the claim, finding her termination was not unfair, even though the situation might equally have been resolved by dismissing Cook.
Last month, commissioner John Ryan, deputy president Val Gostencnik and vice president Adam Hatcher agreed with Watson’s decision, rejecting Lumley’s appeal.
The commission found the dismissal was not unfair because Bremick had made a clear attempt to manage the conflict over a long period of time and had little alternative but to terminate one of the employees.
“Although Mr Jamieson perhaps acted unwisely in acting to dismiss Ms Lumley in the heat of the moment, nonetheless the continuance of the conflict between Ms Lumley and Ms Cook left him in an impossible position, irrespective of who was at fault,” said Ryan, Gostencnik and Hatcher.
“The dismissal of Ms Lumley was a valid response to that situation. The fact that the situation might equally have been resolved by the dismissal of Ms Cook could not by itself render Ms Lumley’s dismissal unfair.”
TressCox partner Rachel Drew told SmartCompany the commission took into account the fact Bremick had taken the complaints of bullying very seriously and had attempted to manage the conflict over a significant period of time, using a number of different strategies, mediations and formal warnings
“Things seem to have reached a head because it was a very small workplace, with limited alternatives to resolve the conflict, such as transferring one of the employees to another location,” says Drew.
“The two simply couldn’t work together in cooperative and productive way.”
Drew says while it is advisable for an employer to make the final decision of who should be dismissed with more “calm and consideration”, Lumley appeared to have provoked the termination.
“She almost dared him and he said, ‘well okay, let’s do it’.”
Drew says employers should always take any complaints seriously and use a number of different strategies to attempt to resolve them in order to protect themselves from unfair dismissal claims.
“But at the end of the day, if the conflict is detrimental to the workplace, termination is a possibility,” she says.
SmartCompany contacted Bremick but did not receive a response prior to publication.