The FWC has upheld the sacking of a worker for pressuring a colleague to join the AMWU after a "balanced and meticulous" external investigation found his actions amounted to bullying. The Trustee for Bartlett Family Trust (trading as Concept Wire Industries) stood the warehouse worker down with pay in October last year while it investigated a colleague's bullying complaint, ultimately dismissing him for misconduct in January. The tribunal heard that the warehouse worker encouraged his colleagues to join the AMWU ahead of a meeting to elect a site delegate. A machine operator complained to the supervisor and general manager that the warehouse worker had repeatedly approached him while he was alone to ask him to join the union and alleged that, when he refused, the warehouse worker threatened to isolate him and find a way to get him sacked. The machine operator said he felt bullied, threatened and intimidated; believed he could no longer work in the same factory as the warehouse worker; and worried that anxiety and panic attacks might cause him to quit. A preliminary investigation by the general manager established that of four employees approached by the warehouse worker, the machine operator was the only person who felt intimidated or pressured to join a union. However, the general manager said "alarm bells started ringing", and that he realised a formal and independent external investigation was required when, in putting the complaints to the warehouse worker, he denied them and accused the general manager of "union bashing". That investigation, conducted by legal practitioner Katherine Wirth, substantiated the allegations and concluded that it was bullying. In the warehouse worker's dismissal letter, Concept Wire said he was "aware of the mental health of the [machine operator], but you still showed behaviour that created a risk to [his] health and safety". His continued employment, it said, posed a "significant risk to the health and safety of fellow employees". Right to organise balanced against right not to join Commissioner Nick Wilson found that Concept Wire had a valid reason to dismiss the warehouse worker based on the results of the investigation, its processes and its obligation to provide a safe workplace. He noted that the warehouse worker had a right to "assist in the union's endeavours to organise the workplace" and to approach the machine operator "about joining the union as well as doing so as persuasively and passionately as he could, within the bounds of what might be considered reasonable conduct". "On the other hand [the machine operator] held an equally important workplace right being the right to decline to join the AMWU when asked by [the warehouse worker]," said Commissioner Wilson. "He also held the right not to be subjected to workplace bullying in any form." Acknowledging the problem faced by Concept Wire when both employees were "equally adamant" about their conflicting versions of events, the Commissioner also praised Wirth's "meticulous and balanced investigation process". Her report, he said, recorded the process by which she interviewed nine people including the warehouse worker, and made findings on the balance of probabilities of the evidence and on the overall import of the evidence. "Some investigation reports seen by the Commission in this jurisdiction fail to get to the heart of such a situation and rarely undertake a true balancing of the evidence seen by them", Commissioner Wilson said. Anthony King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017] FWC 3867 (24 July 2017)