An employee was validly dismissed for arranging with co-workers to intimidate a colleague by using their cars to prevent him following his usual route home.
Conspiring at work to organise the conduct amounted to bullying that was a breach of the employer’s policy. Although the actual incident occurred away from the workplace and outside normal working hours, it was clearly linked to employment.
There was a history of the co-worker being bullied at the workplace over the previous two years. This included an incident earlier the same day when he had objects thrown at him while at work (not by the dismissed employee, but evidence suggested the other two employees were involved), one of which hit him on the head.
When all the employees left work to drive home, the dismissed employee and two co-workers positioned their cars in front of and behind the victim’s car. When the victim needed to make a right turn off the highway to head home, the dismissed employee positioned his car to “box him in” and prevent him from making the turn, with assistance from the co-workers who had slowed their cars down. The victim had to drive further down the highway, make a U-turn and return.
Victim’s evidence more convincing
The victim reported the incident to management who investigated it, including collecting evidence from other employees who were also driving nearby but were not involved. It concluded the dismissed employee had breached the employer’s code of conduct and anti-bullying and harassment policy, and also placed the victim’s safety at risk. It dismissed two of the three employees and gave the other one a final warning.
The three co-workers denied the driving incident had occurred, but the Fair Work Commission found the evidence of the victim and other nearby drivers to be more credible.
It found the dismissed employee had looked at the victim and laughed or grinned at him when he blocked his car from turning. Also, he had spoken to some of the other uninvolved drivers about the incident and asked them to keep quiet about it.
Thirdly, it appeared that the three employees involved had conspired afterwards to concoct a story about what happened, although the dismissed employee (who by that time had been suspended with pay) was told by management not to discuss it with anyone else.
Conduct was work-related
The commission found the incident was sufficiently connected to employment to justify disciplinary action by the employer for the following reasons:
- Previous incidents of bullying of the victim
- The other two employees involved in the driving incident were involved in the object-throwing incident at work the same day
- While there was no evidence the dismissed employee was involved in the previous bullying incidents, it was clear he was a friend of those who had, and regarded their conduct as amusing
- The incident had the capacity to affect the victim’s safety and welfare, which the employer had a duty to protect
- If an injury had resulted from the driving incident, it would have been treated as a “journey claim” under workers compensation legislation, as the victim was travelling home from work
- The incident had the potential to adversely affect the employer’s reputation
- The victim and the three co-workers all knew each other and had worked together.
The actual driving incident did not fall within the scope of coverage of the employer’s Anti-Discrimination, Sexual Harassment and Bullying Policy. But as the three employees had met to plan the incident while on the employer’s premises during working hours, that meeting breached the policy.
The commission also took into account that during his eight years of employment, the dismissed employee had received three official warnings for misconduct, unsafe behaviour and bullying respectively.
It found that the dismissal was not unfair.
What this means for employers
Conduct that occurs while employees are travelling to or from work can be regarded as “in the course of employment” if:
- The reason(s) why it occurred derived from conduct at the workplace, such as bullying or harassment
- An employee was injured, or could have been injured, by the conduct
- It has the potential to adversely affect the employer’s image and reputation.
Employment policies issued to employees need to make this situation clear.