Insubordination caused by disagreeing with employer’s actions is a valid reason for dismissal

A retail employee worked part-time at a supermarket beginning October 2017 as a check-out operator and swiftly became a supervisor in the customer service department. From working for only 25 hours per week, she was asked to work 35 hours a week.

Discovered that a co-worker was a convicted paedophile

On 3 July 2021, the retail employee worked alongside a new male employee but found that that male employee made her feel uncomfortable. She Googled the male employee and found that he had been convicted of a sexual offense, had served his sentence, and had just been recently released. She informed the store manager what she had learned about the new employee and asked not be made to work alongside him. She also asked that the co-worker be sacked.

No legal basis to dismiss the co-worker

The Group Manager informed the retail employee that the company’s lawyers saw no legal ground to dismiss the sexual offender simply because he had been convicted of a crime in the past. The retail employee then said that the sexual offender’s interactions with the younger female staff made them feel uncomfortable, but she could not give details of any unwelcome or inappropriate conduct by the male employee. The retail employee could not even provide the names of the other female employees who supposedly felt uncomfortable working with him.

All the retail employee could say was that she had always thought that there was something not right with the male employee and that he should be sacked. The Group Manager reiterated that unless the male employee displayed behaviour similar to the behaviour for which he had been convicted, it would be unfair to dismiss him.

Request not to be rostered with co-worker

The retail employee then emailed her store manager reiterating her request not to be rostered with the male employee. The retail employee was temporarily assigned to work in the variety department instead of at the front of the store where she was usually assigned, but her discomfort and frustration at work grew. She felt she was being punished as she was re-rostered.

Disgruntled employee

A month later on 9 August 2021, the store manager offered the retail employee a post at a different branch of the supermarket, but the retail employee did not want to transfer as she lived close to the supermarket where she worked.

The retail employee then burst out and said that the male employee should be moved and not her. His hours should be cut and that he should not be working with young people as he was a paedophile and should be terminated. Again, the Group Manager said that without evidence of workplace misconduct, the supermarket could not just dismiss the male employee.

Stormed out of the meeting

Dissatisfied with her employer’s response, she left the meeting but returned immediately and told the Group Manager that she was not doing a very good job. Later that day, the retail employee telephoned her supervisor, telling her that she was unsure if she would continue to work for them. The supervisor noted that the retail employee was hysterical. After the phone call, the retail employee sent her supervisor a text that she was sick and would not be coming to work the next day.

The retail employee took five days’ leave and saw her GP and then returned to work. She sent her supervisor an email informing them of her continuing disappointment at their failure and refusal to remove the male employee.

New roster for the retail employee, to accommodate her request

On 23 August 2021, a week after the retail employee returned to work, she was called to a meeting to inform her for a more permanent solution. Going forward, so that she will not have to work alongside the co-worker who was an ex-convict, she would work one day in the variety department, two days at the front-end and two-days in the on-line department.

Insults and inappropriate statements

The retail employee reacted with anger as she considered the online work a demotion. She even called the people who worked in the online department as “monkeys.” She insisted that she be moved into an office where she could use her brain. When she was not given what she wanted, she called the store manager a “shit” manager who did nothing all day.

Apology and return to work

On 25 August 2021, she sent a text message to the store manager apologising for how difficult she had been and for behaving atrociously toward her. She said she was happy to work wherever she was needed.

Disciplinary action and warning for disrespect and inappropriate behaviour

But the store manager had to communicate to the Group Manager what had occurred at the second roster meeting. The Group Manger decided that the retail employee’s conduct toward other employees and the managers was unacceptable and warranted disciplinary sanction.

On 26 August 2021, she was sent a letter advising her of a disciplinary meeting for allegations of unprofessional behaviour at the first and second roster meetings and for calling her manager swear words.

During the disciplinary meeting, the retail employee did not deny the allegations, but she asserted that all the problems with the male employee could have been avoided if the supermarket only did police checks. The retail employee showed the Group Manager disrespect by rolling her eyes when the Group Manager was speaking. The retail employee also questioned why she was being disciplined for acts that she had already apologised for.

The Group Manager said that while the retail employee had apologised to the store manager, the apology did not make the bad behaviour disappear. She was given a first and final warning that any repetition of similar behaviour will result in her termination. She will stick to the roster she had been given.

Frustration and outburst on the shop floor

The retail employee accepted the warning and worked the roster she had been assigned. However, the workload in the online department increased as the volume of online orders and deliveries increased. On 27 September 2021, the retail employee had a backlog of online orders to complete but she was directed to take her required break.

Whilst on the shop floor and in the presence of customers, she raised her voice and waved her arms saying, “Lunch was a waste of time now I have all this to pick.”

The online department manager approached the retail employee and told her to calm down, but the retail employee continued her outburst and repeated what she had said using an angry tone. She said she will never have lunch break again. The online department manager told the retail employee that she was only trying to help her as she did not have her lunch break the week before until 3.00 pm.

A few minutes later, they both moved to a different part of the store to fill orders, but the online department manager could still hear the retail employee expressing her frustration with the work and being forced to take her break.

At the end of the day, three employees approached the online manager and informed her that the retail employee had spoken to them rudely or that they had witnessed the retail employee speaking rudely with them or with contractors. The online department manager then asked them to put their statements in writing.

Allegation letter for rude behaviour

One 29 September 2021, the retail employee was sent an allegation letter regarding her rude behaviour to her co-workers and to the online department manager. She was advised that because of the warning she had received in August, the matters raised in the allegation letter may lead to her termination.

The retail employee’s response to the allegation

The retail employee attended the disciplinary meeting and chose not to bring a support person. She was rostered to work that day but she came to the meeting not wearing her uniform.

She explained away her behaviour by admitting she had been a bit cranky but that she had already apologised to the online department manager and to the team the very next day. Also, her comments had not been directed toward any particular person, but she was merely frustrated. Her mental and physical wellbeing had been impacted by the management’s order to stay silent about the male employee who was a convicted sex offender.

She had felt singled out and the management had placed unreasonable work expectations on her. She felt that her coming forward with her concerns about the criminal history of the male employee was met with punishment from the management. The new roster she was given had caused her to stagnate because she had been removed from a department where she had previously thrived.

Dismissed and the application for unfair dismissal

The retail employee was dismissed for serious misconduct but she was given four weeks’ pay in lieu of notice. She filed an unfair dismissal application. She claimed that there was no valid reason for her dismissal.

Dismissal was neither unfair, unjust, or harsh

The Fair Work Commission found that there was a valid reason for the dismissal and that she was not denied procedural fairness.

The Commissioner rejected the contention by the retail employee that because she had already been disciplined for her earlier conduct, the same conduct could not be considered in disciplining her for the second incident. The earlier disciplinary response by the employer did not erase the earlier misconduct that the retail employee had committed. When the employer considered the warning previously given, it did not mean that the employee was being disciplined twice.

The misconduct of the retail worker consisted in her breach of her duty of respect toward her co-workers and employer. Whilst it was understandable that the retail employee was frustrated by her employer’s inaction on her complaint against her co-worker and she disagreed with her employer’s response not to sack her co-worker who was a former sexual offender, the retail employee was not allowed to manifest her disagreement in an insubordinate manner.

While refusal to accept her employer’s response was not an act of misconduct, telling her manager that she was not good at her job was and act of disrespect and insubordination that constituted misconduct. Telling her manager that she was a “shit front-end manager who did nothing all day” was verbally abusive and an act of misconduct.

Calling other workers “monkeys” was rude and insulting and inappropriate. Her manager cautioned her not to refer to the online department employees as “monkeys” as they would be offended, but the retail employee repeated the same comment. This, too, was insubordinate.

Blurting out her frustration over the volume of online orders and being made to take a break within earshot of her manager and customers whilst on the shop floor was a breach of her duty to act in a courteous and professional manner. While the outburst may have been brought on by frustration, given the context of her recent similar behaviour, her outburst on the shop floor war a material act of misconduct.

While it is true that the retail employee apologised for her acts of misconduct, the apology was followed by another act of misconduct of the same type. This indicated a pattern of behaviour where the retail employee allowed her frustrations to override her obligation to act in a professional, courteous, and respectful manner. Her uncontrolled outbursts damaged her relationships with her supervisors and managers even as she became indifferent to the impact of her conduct on others.

The application was dismissed.

Source:

Tiffany Stodart v The Employer [2022] FWC 277 (4 March 2022)

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2022/277.html

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