Unfair dismissal claim rejected despite employer’s failure to respond to ongoing misconduct

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By Bianca Friedman

The Fair Work Commission refused an employee’s application for unfair dismissal despite finding that the employer was aware of his inappropriate behaviour and did not intervene in a timely manner.

The employee had made offensive remarks and bullied co-workers repeatedly over a number of years. The employer had been aware of this conduct since 2009, as a number of complaints had been made against the employee. However, it took no action to ‘counsel, advise or retrain’ the employee and made no attempt to remedy the behaviour, prior to terminating his employment for misconduct in 2012…

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