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Two long-term employees of a council-owned water supply and sewage treatment service were found to have been unfairly terminated over alleged comments about the promotion of a new colleague.
The Fair Work Commission’s Sharon Durham ordered Unitywater, which traded under the Northern SEQ Distributor-Retailer Authority, to reinstate and compensate two employees who were unfairly terminated in January this year over a promotion dispute.
While Durham found some of the behaviour of the men to be unprofessional, she was not convinced they were in breach of workplace policy or that there was a valid reason for their dismissal.
“Whilst I have found [the men were] in breach of the code, I do not consider that any disciplinary process related to these breaches could reasonably have resulted in [their] dismissal or other monetary penalty,” Durham said in her written reasons for judgment.
The dispute between Unitywater and its employees arose after a team-wide email announced the appointment of a colleague to a more senior role. At the time of the announcement, the colleague was at the company for a short time and was under probation.
Almost immediately after the email, one of the employees – the only one of the two to apply for the same role – was allegedly overheard saying he was “not f--king happy” and “she shouldn’t have gone for it”.
Durham said the employee had believed the colleague could not apply for the role due to her probation, and was ultimately satisfied this understanding was “reasonably held” at the time.
Over the next several days, the same employee was accused of making remarks about 50-year-old men being a “dying breed” and women being in leadership roles “for statistics only”.
The employee was also accused of approaching the colleague directly and allegedly saying words to the effect of “you know there will be consequences” and “you are going to have a terrible time”.
During a December meeting to discuss, the employee acknowledged he may have made the colleague uncomfortable and expressed a willingness to take part in training so that he could “make the workplace a better place and myself a better person”.
The second employee was accused of making allegedly derogatory comments about a supervisor and telling others the colleague should not have applied, “as she doesn’t know what she’s doing”.
Letters detailing the allegations were put to both men in December and were later substantiated in a report. It was these findings that supported the unfair termination in early January.
Durham found the human resources manager gave evidence through the lens of an “unwavering belief in the thoroughness of her investigation and its outcomes”.
The commissioner added that this led to an “almost complete unwillingness to concede a number of propositions challenging the investigations and her findings”.
In addition to the reinstatement and compensation for lost pay, the Fair Work Commission ordered continuity of employment for both men.
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When a company terminates an employee's job for improper or illegitimate reasons, it is known as an unfair dismissal.
