Problem staff can ruin a workplace. Why is it getting harder to fire them?

“You’re fired!” These are two of my favourite words when it comes to misbehaving misfits in the workplace.

In September, the Albanese government introduced proposed amendments to the Fair Work Act 2009 (Commonwealth), our national workplace legislation. If passed, these changes will introduce a smorgasbord of new workplace rights for employees, independent contractors, and unions focused on reducing insecure forms of work and enhancing job security.

Firing badly behaving employees is set to become harder for bosses if Labor’s latest proposals are approved. Credit: Dionne Gain

One such proposed change relates to enhanced legislative protections for union members within a workplace to act as “delegates” for their colleagues and intervene in disputes to represent members and non-members.

Employers will be prohibited from unreasonably failing or refusing to deal with a delegate; knowingly or recklessly making a false or misleading representation to a workplace delegate; or unreasonably hindering, obstructing or preventing the exercise of the rights of a workplace delegate. Fair enough, but what if the delegate breaches a workplace policy or code of conduct while exercising these new rights?

What the amendments will not do is limit the number of vexatious or meritless unfair dismissal and adverse action claims lodged by a certain class of employees who have been validly and legitimately dismissed by their employer for their bad behaviour.

According to the Australian Human Rights Commission, one out of three people have experienced sexual harassment in the workplace in the past five years, while compensation claims from workers experiencing mental stress (frequently resulting from workplace bullying) have increased 68 per cent since 2001, according to Safe Work Australia.

Whether it’s related to post-COVID return-to-work anxiety, reduced resilience among younger workers, or the implications of the cost of living stress, employees are now more aggro than ever before, meaning bullying, sexual harassment, disobedience, gaslighting, negativity, and disputation are reaching record highs across Australian workplaces.

I’ve been an employment lawyer for 15 years. After criminal and family law, employment lawyers see the very worst things humans can do to each other. I’ve assisted employers in dismissing employees who have engaged in elder abuse in nursing homes, sexual misconduct in private schools, and physical assault of toddlers in childcare centres. I have advised on the dismissal of an employee who devised a plot to murder a colleague to get a promotion, and employees who have drugged and assaulted work colleagues at workplace parties. I have helped employers deal with workplace fatalities based on safety failures and suicides linked to workplace bullying.

When faced with legitimate disciplinary action, some employees engage in a subjective reconstruction of innocuous workplace events through the prism of their own unsatisfied aspirations and view everything that happens to them at work as some form of unlawful treatment. Commonly, when this behaviour is called out, they allege bullying. Then, when an independent investigation confirms they have not been bullied, they allege victim blaming. Finally, when the employer implements a disciplinary process like performance management, the employee takes extended sick leave or makes legal claims to the Fair Work Commission.

While many of the proposals within the government’s amendments to the Act will be welcomed by workers, unions and regulators – among them improving employment security and basic entitlements for delivery drivers – the reality is that some employees are legitimately and necessarily fired because they are bullies, predators, malingerers or perpetrators of behaviours in breach of workplace polices.

But dismissing problem employees is not always easy. Almost all employees have some form of protection from dismissal under unfair dismissal laws. Of those falling outside the unfair dismissal framework (frequently senior executives), there are “workplace rights” protecting them because of discriminatory factors (age, gender, disability, to name a few) or because they have made legitimate complaints at work. As such, employers must navigate a complex web of industrial laws, even where serious misconduct such as theft, bullying, sexual harassment or assault has occurred.

Many years ago, I acted for an employer in an unfair dismissal case who had sacked an employee over their drunken conduct at a work Christmas party. The intoxicated employee urinated over the side of a balcony at the restaurant where the party was held, and onto diners below. Astonishingly, after he was dismissed for this behaviour, which was witnessed by many, he lodged a claim alleging his dismissal was unfair. The employer ultimately paid some “go away money” to settle the claim because the cost of defending a hearing, in which legal costs would not be recovered even if the employer won, was deemed to be far greater.

Individuals who have committed crimes or engaged in serious misconduct, particularly in industries with vulnerable stakeholders such as children or the elderly, need to be removed from those workplaces. Yet, the Commission will accept and conciliate any dismissal-related claim lodged by anyone found guilty of doing anything at work. In some cases, these individuals may be seeking reinstatement.

Employee protections are fundamentally important for a proper, functioning democracy. History shows us what happens when workers do not have adequate rights. But protecting employers and stakeholders from badly behaving employees is just as important as protecting employees from badly behaving employers.

Employees who refuse to do their job are a drain on culture, executive energy and corporate resources, and their negativity can contaminate the entire workplace. Lawful removal of the these kinds of employees is essential to the maintenance of a positive workplace culture and safe environment for those who actually want to be there.

While employees, independent contractors and unions will gain a range of new rights and protections, including the proposed delegate rights, aimed at job security if the proposed changes to the Fair Work Act are passed, employers will struggle even more to deal with the worst kinds of misconduct and bad behaviour in the workplace. Instead, they will be forced to outsource the management of these issues to specialist lawyers to navigate an increasingly complex workplace relations system, all because they want bad behaving employees to exit the building.

Paul O’Halloran is a partner and head of office at Dentons Lawyers Australia.

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