Reasonable Dismissal For Employee Who Told Manager, “You’re Dead”

Published August 16, 2019 (last updated July 22, 2020) -

The Fair Work Commission has upheld the sacking of an employee for serious misconduct, including sexual harassment, the threatening of colleagues, misuse of the company credit card and the breach of safety policies.

A former employee of a refrigeration company lodged an unfair dismissal claim after being terminated earlier this year.

The employer dismissed the employee after his behaviour became even more erratic despite being put on a performance management plan after a string of unprofessional incidents.

The employee, a business development manager, had been at the company for eight years but over the last 12 months, the employee’s behaviour was noted by the employer as becoming more easily agitated and often aggressive.

The manager decided to raise his concerns with the employee informally. Asked whether he was taking any drugs, the employee told the manager that he smokes marijuana recreationally and that he has recently been prescribed Valium. In another meeting the employee said that he was admitted to hospital after having a mental breakdown the previous week.

After misusing the company credit card, the employee was placed on a performance improvement plan in October last year. Yet the offensive and bizarre behaviour continued, including:

  • Reporting his company laptop stolen – but failing to file a police report, as instructed by his manager
  • Abusing a manager over the phone, including telling him “you’re dead”
  • Making sexually inappropriate remarks
  • Telling customers that “the way to make lots of money is to sell drugs”
  • Walking around the company showroom punching his fist in the air, singing loudly

During the hearing, the Commissioner Hampton ruled in favour of the employer, partly because he found the employee’s evidence “unconvincing”.

Commissioner Hampton also found that that the employer had given the employee “considerable latitude” and did not escalate their concerns until the employee had been cleared to return to work.

“Given the early indications that the employee’s circumstances were the product of his personal domestic situation, and the refusal to provide access to more detailed information about the medical condition, any criticism of the employer’s approach to this aspect must be muted and seen in that context,” Commissioner Hampton said.

Despite ruling that the dismissal was not harsh, the Commissioner did add that the employer could have provided the employee with more support.

“During proceedings, the employee suggested he did not report his medical condition to his employer for fear of damage to his employment prospects,” Commissioner Hampton said.

“I accept that this is a concern genuinely-held in the community and that as a society we do not always handle mental health challenges well.

“I would also accept that in some respects, [the refrigeration company] could have handled the early signs of the employee’s behavioural changes differently and provided some additional support.”

Related: Creating Mentally Healthy Workplaces [Podcast]

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