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By Bayside Group

Oct 21, 2019

Former son-in-law awarded compensation after employment family feud

They say you should never work with family or friends, and this recent matter decided in the Fair Work Commission proves exactly why. The case involved a delivery driver who was found to be constructively dismissed by his employer, despite being the former son-in-law of the business owners.

The delivery driver, Mr Wood, had worked for the cleaning chemical distributor and manufacturer for more than 20 years and was, at one point in time, married to the daughter of the business owners.

Mr Wood started work at Delshine Pty Ltd in 1997, both manufacturing and delivering cleaning chemicals for the company. Throughout this time, he was married to the business owner’s daughter until 2015, when they divorced. During Mr Wood’s time of employ, the business experienced a drop in sales and his hours were reduced. To provide himself with financial security during this time (in conjunction with utilising his existing leave balances), Mr Wood began to establish a garden and lawn maintenance business.

During the Christmas close-down period at the end of December 2018, Mr Wood met with his former father-in-law and owner of the business, Mr Bus. During this meeting, a private conversation was had between the men, in which Mr Wood claimed that he felt Mr Bus’s wife, who was also Mr Wood’s former mother-in-law, was behaving inappropriately toward him, in a manner that he felt equated to sexual harassment. Mr Wood asserted that he felt uncomfortable working alongside her and no longer wished to do so.

During the Unfair Dismissal hearing, Mr Bus claimed that he investigated these allegations of sexual harassment and put forward a total denial of all the allegations, despite Mr Wood’s partner and Mr Wood’s daughter conceding that they had witnessed Mr Bus’s wife behaving inappropriately.

When the business re-opened on Monday the 7th of January, Mr Bus met with Mr Wood to discuss the employee’s request to no longer work with Mrs Bus. Four days later, a conversation occurred between Mr Wood and Mr Bus in which Mr Wood was asked to sign in the wages book that his hours would be reduced to between 9am to 2pm without break, due to both a downturn in sales and the claims of sexual harassment.

When Mr Wood refused this request, the conversation became confrontational and it is during this conversation where there are differing accounts of what was said. Mr Wood denied that he told Mr Bus to “stick his job” and that he stormed off, as was claimed by the employer. It was not disputed that the conversation was loud and animated and could be overheard by others in the immediate area.

 

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On the following Monday after the confrontation, Mr Wood presented for work but was prevented from entering the factory, with Mr Bus stating that he was no longer an employee due to resigning the previous Friday. Once more the conversation between the two became aggressive and argumentative. Police were then called to ensure Mr Wood was escorted away from the factory.

The Commission Member hearing the matter, Deputy President Binet, determined that witness evidence was influenced due to the complicated family dynamic and obvious conflicts that arose as the scenario unfolded. It was considered that Mr Wood’s son was in fact the most credible of all the witnesses, given his relationship to both his father and ties to his grandparents’ business. His evidence outlined that “Mr Wood never stated that he had resigned” and that “his father told him that he had had an argument with Mr Bus about payment and sexual harassment and that he planned to take Delshine to court”.

The key aspect taken into consideration was that regardless of interpretation over the discussions that took place, “Mr Wood is entitled to enjoy a workplace free of harassment” and that the response of Mr Bus to the initial claims of harassment was to “impose a significant reduction in Mr Wood’s employment conditions”.

It was not determined in an absolute sense whether Mr Wood had resigned, however it was clearly stated by the Deputy President that “Mr Wood was clearly and justifiably unhappy about the reduction in his hours of work. A reduction in hours of work is not an appropriate response to a complaint by an employee that they are the subject of sexual harassment. I am not satisfied that Mr Wood did state that he resigned. If he did do so, this statement clearly occurred in the heat of the moment and was a consequence of conduct engaged in by his employer”. This established a very clear rationale for why it was determined that Mr Wood was unfairly dismissed on the basis of a constructive dismissal.

As a result, Deputy President Binet ordered that the employer compensate Mr Wood an amount equal to four weeks wages.

 

Key Takeaways

The below points address some of the major areas where the employer made errors of judgement that resulted in the Commission ruling in favour of the employee.

  • While it was no doubt extremely uncomfortable that Mr Wood’s claims of sexual harassment were made against his former mother-in-law, the employers decision to address the complaint by reducing Mr Wood’s hours of work was deemed to be constructive dismissal, and therefore a significant misstep.

     

  • Just as any employee, Mr Wood was entitled to come to work and be free from harassment. Mr Bus’s inability to properly address his employee’s allegation is, in itself, negligent of his obligations as an employer. His act of then reducing Mr Wood’s hours of work was clearly an inappropriate method of responding to the allegation, even taking into account the personal dynamics involved.

     

  • This case demonstrates a blurring of the lines between when the individuals were acting as family members and when they were acting as employees. The employer had no clearly defined policies and procedures that allowed for a clear separation between everyone’s working and personal lives, meaning they were not correctly upheld. Even family members must still be treated no more or less favourably in the course of their employment, and concepts such as procedural fairness and natural justice must be afforded. An employer should never assume that family relationships can mean a less thorough approach to these issues in a workplace.

 

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