Ever had an interpersonal employee conflict that doesn’t end? Where two people despise each other and no matter how you try to resolve the issue they refuse to get along? In a recent case, the full bench of the Fair Work Commission (FWC) found that an employer did not unfairly dismiss an employee after a she was party to a prolonged and unresolved conflict with another employee.
The conflict
Jacqueline Lumley was employed in a small office by Bremick Pty Ltd Australia t/as Bremick Fasteners (Bremick). Lasting close to a year, Ms Lumley’s conflict with another employee, Ms Nikki Cook, had a direct impact on their work performance and their relationships with Bremick’s clients. It started with a bullying claim by Ms Lumley against Ms Cook and Bremick. The claim was found to be unsubstantiated. The womens’ manager, Mr Jamieson, identified there was an issue and conducted a mediation to resolve the conflict. At its conclusion, Ms Lumley and Ms Cook were directed to refer future conflicts to Mr Jamieson rather than deal with each other directly, and were given written warnings that failure to comply with the new procedure may result in dismissal.
“Just do it, sack me.”
However, over the following months it was clear the new procedure had not resolved the conflict. Ms Lumley was given a further verbal warning a month after the mediation with a final written warning, restating Ms Lumley’s obligation to comply with the mediation procedure and the risk of termination if the working relationship did not improve, issued a month after that. Four months later there was a further argument between Ms Lumley and Ms Cook. Mr Jamiesons met with Ms Lumley, where she invited him: “Just do it, sack me.” So he dismissed her on the spot, with pay in lieu of notice.
The Decision – The Dismissal was Fair
Both at trial and on appeal, the FWC found that Ms Lumley was not unfairly dismissed as her dismissal was a valid way to resolve the longstanding dispute. Importantly, it was not necessary for Bremick to attribute sole responsibility for the conflict to Ms Lumley in order for her dismissal to be fair. It was sufficient that the dismissal of either Ms Lumley or Ms Cook. In a meeting with Mr Jamiesons, MS Lumley taunted him: “Just do it, sack me”. So he did.
For Employers
Employers can look to Bremick’s employee management procedure as a model for resolving employee conflict. Bremick offered mediation and issued verbal and written warnings. These efforts by the employer helped prove there would be no resolution of the dispute without dismissal of the employee.
Employers, you are not burdened with the impossible task of ensuring all employees get along. Employers only need to seek “peace for our time”: they do not need to persist unreasonably with appeasement of employees in the face of ongoing conflict. .
For more information on what you can do to protect your business from unfair dismissal claims, contact Peter McNamara on peter.mcnamara@cml.com.au.
You can read the full case here:
Jacqueline Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners (c2014/5516)