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Patience pays off for employer wrangling with a difficult employee

Victoria Quayle ||

Managing employees through the disciplinary process can be difficult. At all times, the manager or employer should maintain the utmost professionalism and courtesy (even where the other party acts to the contrary) and press ahead with the process in line with the relevant policy and procedure.

Further, it is important for the employer to document pertinent correspondence with the employee as they go through any disciplinary process as this evidence will be critical if, and when, the employment relationship sours.

It is rare for the Fair Work Commission to praise the actions taken by an employer when dealing with a difficult and challenging employee. Employer commendation from the Bench was recently given in Abeyratna v Iron Mountain Australia Group Services Pty Limited [2020].

The Facts

Mr Abeyratna was employed by Iron Mountain (IM) in the full-time position of Warehouse Information Specialist. From February 2019 to May 2020, Mr Abeyratna was on a period of leave (both paid and unpaid) and IM was unclear as to when and whether he would be fit to return to work.

On 4 May 2020, IM wrote to Mr Abeyratna requesting that he show cause as to why his employment should be permitted to continue, given that he appeared unable to return to work. In response, Mr Abeyratna provided IM with a 3 page document indicating that he would not return to work until IM had re-investigated his 15 grievances (which ranged from not being provided with a job description to bullying and harassment to making enquiries about his pay) and addressed each to his satisfaction. This was notwithstanding IM had already investigated the grievances and concluded them.

IM terminated Mr Abeyratna’s employment on 27 May 2020 on the basis that he failed to provide them with any substantive evidence showing that he was, or would be fit to return to work in the near future.

Mr Abeyratna lodged an unfair dismissal claim.

The crux of Mr Abeyratna’s claim was that from February 2019 to his termination, he was “100% on psychological sickness leave due to a series of bullying and harassment incidents” and IM’s decision to dismiss him highlighted a “process of procedural unfairness”. The remedy he sought from the Commission was for it to “annul the termination notice and instruct the employer to rectify the ‘employment confusion’ before he recommenced employment”.

In August 2019, IM directed Mr Abeyratna to attend an independent medical examination (IME) which found that Mr Abeyratna was unfit to return to work and he was unable to perform his pre-injury duties.

During the many months that that IM attempted to work with Mr Abeyratna to facilitate a return to work, management were faced with blatant refusals to attend work and meetings until his colleagues were “punished, made to suffer and dismissed” and his complaints were resolved. Further, Mr Abeyratna persistently continued to lodge complaints and grievances.

The Outcome

Given the medical evidence that IM had obtained prior to deciding to terminate Mr Abeyratna’s employment, IM had no confidence that he could return to work, or would ever be able to do so. Therefore, IM had a valid reason to terminate Mr Abeyratna’s employment on capacity grounds. The Fair Work Commission dismissed the proceedings and commented:

“To observe that the applicant was a very difficult employee to manage, is truly an understatement. He was uncooperative and demanding. He demonstrated little understanding or willingness to comply with the day to day ordinary expectations of his responsibilities and obligations as an employee, consistent with his contract of employment. He refused to work at certain company sites, or with other people who he perceived were not supportive of his views. Every reasonable workplace instruction he disagreed with was met with a formal complaint. When all of his numerous historic complaints and grievances were investigated and found to be either resolved or having no merit, he simply refused to accept any outcome with which he disagreed. In my view, not even the wisdom of King Solomon would have convinced him his grievances were, for the most part, without substance.”

If you have any questions about how to manage a grievance investigation or a challenging employee, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who would be more than happy to assist you today.

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