Sorting out personality clashes between colleagues is a nightmare for employers, and of course the affected employees, particularly where it is difficult to identify who is most at fault, and where the acrimony has a negative effect in the workplace and upon other employees. However, all is not lost because a decision by an employer to dismiss one of the employees involved and not the other or others, is permissible and will not attract an unfair dismissal remedy merely because it was equally open for the employer to choose the other employee or employees for dismissal.
In Jacqueline Lumley v Bremick Pty Ltd Australia (2014) FWCFB 8278 delivered 5 December 2014, a Full Bench was faced with exactly that situation. In the face of conduct described as “entrenched workplace conflict” the Full Bench refused to overturn a decision which upheld such a dismissal, observing that the employer faced an “impossible position, irrespective of who was at fault”.
“The dismissal of the dismissed was a valid response to that situation. The fact that the situation might equally have been resolved by the dismissal of the second employee could not by itself render the dismissed employee’s dismissal unfair,” the members of the Full Bench said.
The Full bench went on to observe the dismissed employee’s “sense of grievance” over Vice President Watson’s unfair dismissal decision was “to a substantial degree based upon the perception that she had been found to be the one at fault in the conflict with the second employee and that this formed the valid reason for her dismissal”.
But the Full Bench said this misconceived the way in which the case had been decided. “Both the Decision, and the evidence, made clear that the valid reason for the dismissal was not the dismissed employee’s conduct as such, but rather the existence of an interpersonal conflict in a small workplace which had reached the point where it had become incapable of any resolution and was affecting the performance of work and (the employer’s) relationships with its customers.”