Unfounded and public accusations warrant dismissal
The ‘Ugly’ in the ‘Good, the Bad and the Ugly’ from our podcast on Indepedent Contractors from 27 June 2025.
Unfounded and public accusations warrant dismissal despite procedural deficiencies in dismissal process
Some unfortunate circumstances have arisen following a union’s decision to move from a co-delegate to a single delegate system. An emotional and heated reaction to the news leads to public and unfounded bullying allegations, and the unauthorised dissemination of personal medical information, warranting dismissal, despite an inherently flawed show cause process. This case highlights not only the importance of clear and concise communication of decisions in the workplace, but also that the egregious nature of conduct may outweigh procedural deficiencies.
Background
In Anthony Lipari v Transit Systems West Services Pty Ltd [2025] FWC 1430 (26 May 2025), the Transport Workers’ Union determined that one workplace delegate was sufficient, and they no longer required the services of the co-delegate.
Further to this, the remaining delegate was required to inform his colleague of the union’s decision. The remaining delegate chose to impart this decision at a union meeting, catching the now former delegate off-guard to say the least.
The former delegate, in his surprise, had a heated and emotional reaction. He began accusing the remaining delegate of “bullying, intimidation and harassment”. He declared that he was going to seek anti-bullying orders from the Fair Work Commission (the FWC) under section 789FF of the Fair Work Act 2009 (Cth) (the FWA).
The former delegate also went on to make personal attacks against the remaining delegate, repeatedly calling him “kid” and daring him to “put his balls on the line” by allowing the workplace group to vote on their preferred delegate. The former delegate also disclosed details of his colleague’s medical history and workers compensation status.
The former delegate was later dismissed from his employment for misconduct, and soon after filed a claim for unfair dismissal remedies under section 394 of the FWA.
The Dismissal Process
Following the incident, a complaint was made to the employer about the former delegate’s conduct at the meeting. The employer reviewed CCTV footage, took witness statements and issued the former delegate with a notice to attend a “disciplinary interview”.
The former delegate attended the proposed interview, but refused to participate as one representative of the employer had been involved in a prior FWC proceeding lodged by the former delegate. That representative was soon replaced, and the former delegate still refused to participate, claiming he did not have sufficient time to organise a support person. However, some preliminary discussions about the incident did take place. Later the same day, the former delegate was stood down with pay while the employer deliberated.
This deliberation spanned approximately two weeks, with the provision of a show cause letter, two meetings, and two written responses from the former delegate, culminating in the former delegate being summarily dismissed for misconduct. Notably, no piece of written communication from the employer to the former delegate explicitly set out the conduct which he was alleged to have engaged in but made reference to “the events of the meeting held on 18 September 2024”.
The Unfair Dismissal Proceedings
On 21 October 2024, the former delegate made an application to the FWC for remedies for unfair dismissal. He alleged that he was dismissed in retaliation to an earlier application to the FWC. He also alleged that he was subjected to differential treatment compared to other employees who attended the meeting, and that broadly, his dismissal was unfair.
The FWC ultimately found that the dismissal process was flawed because the former delegate was not put on notice of the specific reasons why his employment might be terminated. Therefore, he was not afforded the opportunity to respond to those specific allegations.
Separately, the FWC found that the former delegate should have been informed of the changes to the delegates directly by the union, and prior to the public meeting.
Having said this, being “caught off guard” by the announcement was no basis for the unfounded allegations made against his colleague, or the intimidatory and aggressive behaviour he engaged in. It was found that the gravity of the former delegate’s conduct was a valid reason for dismissal, outweighing the procedural deficiencies. The FWC found that the dismissal was not unfair.
Key Take Aways
Making false bullying allegations against colleagues will ordinarily be a valid reason for dismissal. This was established in Linda Hanrick V Meridian Lawyers [2018] FWCFB 4590 and has been affirmed in this case.
Claiming that comments made in the heat of the moment, or as buff and bluster, does not alleviate accountability.
It is critical that during the show cause process, specific allegations are clearly enunciated and provided to the employee prior to their dismissal. They cannot respond to what they have not been told.
Perhaps most importantly, the clear communication of decisions and the reasons behind them will often assist in the avoidance of these situations altogether.
Anthony Lipari v Transit Systems West Services Pty Ltd [2025] FWC 1430 (26 May 2025)
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.