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“Please have some respect and understand I am on leave,” was the repeated rebuttal by a worker towards his employer who requested he attend a number of meetings to address allegations that he inappropriately touched a colleague.
An application was recently made to the Fair Work Commission (FWC) for a remedy after a former development manager alleged that his employer unfairly dismissed him. The development manager began his employment with the real estate company in October 2019.
Months before his eventual dismissal, the development manager alerted his manager that he would need to take leave from work to attend a court trial on 20 July 2023. The manager complied with this request; however, he was unaware that the trial was in relation to a domestic violence matter.
After the trial concluded, the development manager texted his manager to inform him that he would not be attending work the following day – to which the manager obliged. He then took additional leave for the following week, to which the manager held no objections.
On 28 July 2023, the company’s social club held an event, which the development manager attended. At the event, an alleged incident occurred between the development manager and his colleague. The company alleged that the development manager “inappropriately touched” the other colleague, while the manager alleged that the colleague assaulted him by pinching his cheek.
On 1 August 2023, after an official complaint was made to the company regarding the development manager’s alleged conduct at the event, he was subsequently stood down with pay pending the outcome of an investigation into the incident. He was given both a written and verbal warning not to contact any other employees who may have been involved in the incident.
He allegedly failed to follow this directive, as he messaged the colleague who pinched him, saying, “Why did you pinch my check [sic] so hard in [sic] Friday night? It bruised my face … I know what it was.”
The people and culture manager for the company reiterated this directive to the development manager, to which he replied to her email:
“Sorry you did say on the phone yesterday don’t contact anyone about an incident, however I am not sure what you are referring to so I can contact anyone right? Not being cheeky at all just saying. I am after a support person. I should have had one on the first call.”
On 10 August 2023, the people and culture manager sent the employee a letter outlining the allegations against him and asking him to attend a meeting on 11 August 2023. The development manager did not attend, stating he had come down with the flu.
This set off a cat-and-mouse affair with the employer actively requesting the development manager’s attendance, to which he, with the assistance of his solicitor, would use medical certificates to justify his lack of attendance.
In total, the development manager allegedly failed to:
- Not contact other employees after the incident on 1 August 2024.
- Failed to attend a meeting on 11 August 2023.
- Failed to attend a meeting on 15 August 2023.
- Failed to attend a meeting on 17 August 2023.
On 18 August 2023, the development manager emailed the people and culture manager, responding to the allegations and denying that he assaulted his colleague. He stated that the employee who had made the complaint had assaulted him by pinching his cheek and giving him a bruise.
Her response to this email was that it failed to provide enough information regarding the incident and then implored him to attend the meeting. A new meeting was scheduled for 21 August 2023, yet again, the development manager failed to attend.
By 23 August 2023, the development manager’s leave entitlements had been exhausted; therefore, the people and culture manager contacted him, alerting him to this fact and that he would now be on unpaid leave.
More updated medical certificates were provided to the employer by the development manager’s solicitor to explain that he could not attend meetings. Each time the employer asked, a medical certificate was provided.
In total, five medical certificates were provided to the employer by the development manager’s GP. On 12 December 2023, the employer advised that they would request the development manager to attend an independent medical examination (IME).
The development manager’s solicitor agreed that he would be attending the IME. The IME was booked for 8 January 2024; however, the development manager advised the employer on 5 January 2024 that he was unable to attend as he was not available that day, writing, “Please have some respect and understand I am on leave.”
The development manager’s paid leave entitlements were exhausted on 23 August 2023. Since that date, he has been on unpaid leave.
On 8 January 2024, a show cause letter was sent to the development manager, outlining his failure to comply with the employer’s request.
He was instructed to show cause as to why his employment should not be terminated. He responded by reiterating how the incident unfolded at the social club, once again alleging that he was on the receiving end of assault. He failed to address any of the failures to attend meetings.
On 18 January 2024, another email was sent to the development manager that if he failed to address all matters in the show cause letter, he would be dismissed.
On 22 January 2024, the development manager responded by reiterating his request that the employer “please respect that I am on leave.”
He was dismissed the following day.
Consideration
FWC deputy president Nicholas Lake, who oversaw the case, noted that the development manager had numerous opportunities to engage with his employer and provide further information regarding the incident and unavailability for the planned meetings.
“But he failed to do so,” said Lake. He, therefore, found that the dismissal was not harsh, unjust, or unreasonable.
“The [development manager] was absent from his employment for months and refused to participate in the investigation process regarding the incident. Therefore, a remedy for unfair dismissal cannot be awarded, and the application is dismissed,” said Lake.
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
When a company terminates an employee's job for improper or illegitimate reasons, it is known as an unfair dismissal.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
