Cooling Off Period Suggested, Twice

McAdie v Vanderfield Pty Ltd [2013] FWC 7888 (9 October 2013)

When an altercation at work got out of hand, the boss told his fuming employee to go home and cool off. Had he taken that advice, according to a Fair Work decision, he might still have his job, and FWC is advocating that cooling off periods form part of management’s dispute handling technique.

The trouble started when a customer complaint was being investigated and the employee under scrutiny didn’t take too kindly to his regional manager’s approach. Another manager on hearing the verbal stoush intervened and told the employee to go home, cool off and come back to work the following Monday and deal with the issue in a calmer fashion.

According to the FWC, instead of taking this sensible advice, the employee, after heading for home a short distance, returned to the office , “stood over “ the regional manager who was seated at his desk and began berating him in a loud and abusive manner. He then left the office for the second time.

This was when the employee’s fate was sealed. When he returned to work on the Monday he was shown the door without any further ado, with no chance to explain his behaviour nor have a support person. Despite these procedural shortcomings, FWC agreed the sacking should stand. In so deciding, FWC made the observation that the employee’s conduct in returning to the office and abusing his manager was wilful and deliberate. The employee had been offered the chance to cool off but had completely rejected that.

As an aside however, FWC made the observation that employers ought to include cooling off periods in these situations because, in theory at least, there may have been a reasonable and acceptable explanation for the employee’s behaviour (e.g. some serious illness or stress which the employer did not know about).

Enterprise agreements can include provisions for employee’s to be suspended, with or without pay, in these situations and also, they can include provisions for penalties to be imposed by an employer (e.g. fine) as an intermediate step, short of dismissal, as a remedy for misconduct. This case underlines FWC’s view that preserving the employment relationship ought to be the first preference wherever possible.