19 January 2015 They just don’t get on...but what can I do?

By Warwick Ryan, Partner

In Brief

It can be a really difficult situation for an employer when two staff members simply do not get on.  Neither is necessarily at fault or, alternately, both of them are. But what can an employer do?  An employer is not able to make people like one another and their antagonistic behaviour can cause havoc in the workplace. 

In a recent (sensible) decision by the Full Bench of the Fair Work Commission, the FWC faced an appeal by an employee who had been dismissed following a year of conflict with her fellow employee in the confines of a small office.  The Full Bench acknowledged that the reason for the decision was not necessarily the behaviour of the sacked employee but:

"...the existence of an interpersonal conflict in a small workplace which had reached a point where it had become incapable of any resolution and was affecting the performance of work and the company's relationship with its customers".

Importantly, it was not found necessary that the employer establish that the sacked employee was the one at fault.  The full bench even acknowledged that the employer had acted "unwisely" in dismissing the employee in "the heat of the moment".  Nevertheless, it upheld the right of the employer in that situation to terminate an employee where the prolonged hostility between the staff was affecting the business.

This decision comes at the same time as another sensible decision (albeit by a single commissioner and, therefore, not quite so binding) in response to an employee's application for a Stop Bullying Order.  In the course of considering the evidence of terse exchanges between the employees, the Commissioner found that the fact that two employees did not like one another and behaved in an abrasive and sometimes abrupt manner to one another did not amount to bullying. 

In this instance, the Commissioner found that the fact that one employee - in their contact towards another - had been "...upset, exhibited intolerance or low level anger...” did not constitute unreasonable behaviour.  He further found that the employees "... probably did not like each other, and may have even been mutually hostile toward one another", but that did not amount to bullying.

It is gratifying that of the 500+ applications for stop-bullying-orders filed this year – the FWC has only made orders in one of those cases, (although there would have been a number of mutually agree orders).

Some of the members of the Commission are realising that employers are not relationship councillors and cannot make employees best friends.  The reality of all working communities is that not all individuals will get on.  In fact, many will dislike each other and that will never change.  However, affection between staff cannot be the employer's problem. 

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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