Kaskol v TNT Australia Pty Limited T/A TNT [2015] FWC 705: TNT dockhand loses unfair dismissal case
Tuesday 17 February 2015 @ 10.41 a.m. | Industrial Law
A TNT dockhand who repeatedly made complaints about the company’s integrity, including allegations of internal corruption, has lost his unfair dismissal bid in an important ruling for Australian employers.
In Kaskol v TNT Australia Pty Limited T/A TNT [2015] FWC 705 (30 January 2015), the Fair Work Commission found that Kaskol was lawfully dismissed after he made a series of “unsubstantiated” complaints relating to his role as an occupational health and safety representative at TNT.
Background to the Case
Kaskol, who had worked at TNT’s Brisbane depot for six years as a casual dockhand, distributed emails and memos to TNT staff after he was elected to the site’s OHS committee in February 2013. These communications related to his views on what he considered to be “fundamental flaws” with the TNT OHS committee.
Among his allegations, Kaskol claimed the committee’s constitution was “corrupt” and was not meeting TNT’s broader OHS standards. He also claimed he was the subjected to bullying and harassment, including alleged racist comments made by one manager.
TNT rejected Kaskol’s claims after an investigation and he was informed that continuing to make derogatory and potentially defamatory comments about managers and employees of TNT would be viewed as misconduct, as would making false and vexatious complaints.
Kaskol was dismissed on 14 October 2013 on the grounds of serious misconduct, after he did not respond to a letter requesting he substantiate further allegations.
Findings by the Commission
Fair Work Commission Deputy President Ingrid Asbury found Kaskol’s allegations were totally misconceived and his dismissal was not unfair:
“I am satisfied that Mr Kaskol did make numerous and repeated, unsubstantiated and serious allegations against TNT and its employees, including allegations of corruption … Mr Kaskol’s conduct was repeated and continued in the face of clear warnings that he would be dismissed if he continued with it. Further, I am of the view that TNT was extremely tolerant of Mr Kaskol’s behaviour over a significant period of time and went above and beyond what would be expected of a reasonable employer to have Mr Kaskol rectify his behaviour.”
Reaction to the Ruling
Employment lawyer Andrew Douglas said this is an important ruling for Australian employers because its shows employers can manage the performance of a serial complaining employee through the right processes.
Mr Douglas said:
“There are currently some very big and important cases around to try to preserve the right of employees to make complaints … But sometimes, with all the noise around employment law, people forget the basics.”
He also said that employers can discipline and subsequently terminate a worker who makes false, defamatory and offensive complaints, particularly where the comments interfere with performance management.
Douglas says it is important for employers to remember that if an employee makes complaints that are designed to harm and hurt others, or makes a complaint for improper purposes, the complaint itself can amount to serious misconduct.
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