Fair investigation into psychosocial risks supports dismissal for manager’s misconduct

A recent Fair Work Commission (Commission) decision has reinforced that employers can lawfully dismiss employees for serious workplace misconduct, even where not every allegation is substantiated. In Filamor v Port Stephens Veterans and Citizens Aged Care Ltd t/a Harbourside Port Stephens [2026] FWC 2484, the Commission upheld the dismissal of a manager whose conduct caused significant staff distress and who repeatedly failed to follow lawful and reasonable management directions.

Key Facts

A Lifestyle and Engagement Manager lodged an unfair dismissal application after her employment was terminated following complaints about her treatment of staff and repeated failure to comply with management directions.

The employer commenced an investigation after two employees resigned citing the manager’s conduct, while two other team members became distressed and indicated they also wished to resign. Following a workplace investigation and show cause process, the employee’s employment was terminated.

Key Findings

Under section 385 of the Fair Work Act 2009 (Cth) (Act), the Commission was required to determine whether the employee had been unfairly dismissed. In doing so, the Commission considered the criteria set out in s 387 of the Act, including whether:

• There was a valid reason for dismissal related to the employee’s conduct;
• The employee was notified of the reason for dismissal;
• The employee was given an opportunity to respond to the allegations;
• The employee was unreasonably refused a support person during disciplinary meetings; and
• There were any other relevant matters bearing on whether the dismissal was harsh, unjust or unreasonable.

The Commission found that the employer had a valid reason for dismissal. It accepted the consistent evidence of multiple employees that the manager regularly yelled at staff, treated them disrespectfully and created a workplace environment that caused employees to become distressed. Two employees sought medical treatment because of her conduct, while two others resigned after citing her behaviour.

The Commission also found that the employee repeatedly failed to comply with lawful and reasonable directions from her manager, including directions to reduce the number of resident activities and to refrain from contacting staff while she was directed to remain away from the workplace during the investigation.

When instructed to reduce the number of resident activities, the employee stated that she “strongly disagreed” with the direction and asserted that her team members were “being lazy”. Despite repeated requests, she continued to disregard the direction.

While the Commission was not satisfied that the employer had established all allegations concerning the employee’s interactions with residents, it held that the substantiated misconduct alone provided a sound, defensible and well-founded reason for dismissal.

Importantly, the Commission also found that the employer had conducted a fair and thorough investigation. The employer gathered information from relevant witnesses, notified the employee of the allegations in writing, provided her with an opportunity to respond, issued a show cause letter, considered her responses and obtained approval from senior management before making the decision to terminate her employment. The Commission rejected arguments that the investigation was predetermined or biased, describing the manager leading the process as “a careful manager” who acted in a timely, structured and fair manner.

The employee’s unfair dismissal application was ultimately dismissed.

Key Takeaways

This decision provides several practical reminders for employers managing workplace misconduct investigations:

• Take psychosocial hazards seriously. Where employee conduct is causing distress, resignations or adverse health impacts, employers should investigate promptly and take appropriate action to discharge their work health and safety obligations.
• Lawful and reasonable directions must be followed. Repeated failures to comply with legitimate management directions may constitute a valid reason for dismissal.
• Not every allegation must be substantiated. A dismissal can still be upheld where some allegations are not proven, provided the substantiated misconduct is sufficiently serious.
• A fair process remains essential. Employers should clearly notify employees of allegations, provide a genuine opportunity to respond, consider those responses and make a reasoned decision based on the evidence.
• Decision makers can be involved in the investigation. The Commission confirmed that a manager who investigates allegations and recommends disciplinary action is not necessarily biased, provided they approach the process with an open mind, genuinely consider the employee’s response and do not predetermine the outcome.
• Support persons are not advocates. While employees should be permitted to have a support person present during disciplinary meetings, employers are not required to allow the support person to answer questions or advocate on the employee’s behalf.

Learn more

If you’d like to learn more about any of the matters raised in this article, please contact NRA Legal on 1800 572 679 for a confidential conversation.

Filamor v Port Stephens Veterans and Citizens Aged Care Ltd [2026] FWC 2484