Read the full decision here: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc7444.htm

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 Commentary

Violence in the workplace is unforgivable, as it is at work sponsored functions. It has always been my advice that the aggressor should be summarily dismissed with the defender receiving a final warning on the basis that the defender could simply walk away – if in fact that opportunity was open to the defender; after all we all have the right to defend ourselves…right?

But what if the aggressor is a Supervisor, the defender an employee, and a third person, also an employee join in?

The short answer is that the Supervisor resigned and the other two employees who were discussed, made application to the Fair Work Commission for unfair dismissal. What have they got to lose?

Introduction

This matter involves a Christmas event held at a Bowls Club for mining employees and their families. This event was held on 6 December 2018.

Put politely, whilst waiting at the bar for “last drinks” to be poured, the supervisor questioned the validity of Employee “A” being in attendance. This resulted in a heated exchange between the supervisor and Employee “A” which escalated into the throwing of punches. Employee “B”, being “A’s” friend, joined the fracas in his defence. Employee “B” partner intervened to separate her partner from the fight at her own personal risk (as she was recovering from surgery).

The result (apart from the hangovers) was that the Supervisor, Employee “A” and Employee “B” were summarily dismissed (ie without notice). The Supervisor requested and was granted the opportunity to resign.

Oh, and I almost forgot to mention that Employee “B” also felt the need to introduce himself to a female new employee commenting: “Do you have fake tits?” to which the female employee replied: “What? That’s none of your business”. To which Employee “B” explained (?) “All the girls have them, you can’t come to [the work-site] unless you have fake boobs”. Employee “B” later apologised for his comments to the new employee.

Apparently, Employee “B” was considered the “elder statesman” and later explained that

“It was just a joke because the other girls in the crew have all got them. I was talking about the crew. I was not talking about your boobs. I’m sorry if I offended you, that is not how I meant it.” And

“…that it is common knowledge that three of the five girls who work on that strip have had breast implants and that those girls joke about the [worksite] being the “fake boobs strip” for that reason”.

Both Employee “A” and Employee “B” lodged an unfair dismissal application, with very different outcomes.

Their defence

Both Employee “A” and Employee “B” relied on the defence that they did not know that the function was sponsored by the employer and therefore in their own private time and attended as private citizens. His Honour dismissed this defence, stating it was well publicised and patently obvious that the event was well attended by employees and their families and they would not have noticed the food provided at the event – 25 kg of pork, gravy, bread rolls and deep-fried nibbles.

His Honour did, however, take into consideration the abject financial hardship the dismissals had on the applicants and their families, noting that they would not easily be employed in the Queensland mining industry and that there was little other work in Queensland other than mining.

Employer bears the onus of proof

The employer bears the onus of establishing that there was a valid reason for a dismissal. A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts, and validity is judged by reference to an assessment of the factual circumstances as to what the employee is capable of doing or has done.

To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry that the employee was guilty of the conduct.

Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct. In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.

Importantly, employers are not required to have the investigative skills of police or legal investigators but are expected to take reasonable steps to investigate allegations and give employees an opportunity to respond. As His Honour explained:

“…in considering whether there is a valid reason for dismissal on the grounds of conduct, the Commission is required to be satisfied that the conduct occurred rather than that the employer had a reasonable belief that this was the case. Thus the standard of the investigation conducted by an employer is not determinative of whether there was a valid reason for dismissal. However the standard of the employer’s investigation may be relevant to other s.387 considerations including whether the dismissed employee had a reasonable opportunity to respond to allegations”.

The Courts’ views on fighting in the workplace

In AWU-FIME v Queensland Alumina Limited, Moore J considered a number of decisions of industrial tribunals concerning employees who had been dismissed for fighting in the workplace and observed:

“What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.”

A relevant consideration in cases involving fighting is whether the conduct occurred outside working hours and the effect that such conduct has on the employment of the persons involved. The cases considering these issues were considered by Vice President Ross (as he then was) in Rose v Telstra Corporation Limited where his Honour observed:

“There is some support for the proposition that the existence of an implied term of trust and confidence in contracts of employment has been accepted in Australia.

The words ‘trust and confidence’ in this context are used in a contractual sense rather than as an ingredient of a personal relationship. As McCarry notes:

‘…the words ‘trust and confidence’, just like the employee’s reciprocal duties of ‘fidelity and good faith’ do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in an interpersonal relationship.’

Out of Hours Conduct

His Honour stating that:

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct but such circumstances are limited:

  • The conduct must be such that viewed objectively, it is likely to cause serious damage to the relationship between the employer and the employee; or
  • The conduct damages the employer’s interests; or
  • The conduct is incompatible with the employee’s duty as an employee.

“In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

“Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.”

Harsh, Unjust, Unreasonable

The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

  • Harsh – because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
  • Unjust – because the employee was not guilty of the misconduct on which the employer acted; and/or
  • Unreasonable – because it was decided on inferences that could not reasonably have been drawn from the material before the employer.

In the present case, His Honour noted that:

  • Where an employee physically assaults a work colleague in a public place in the presence of other work colleagues, the assault may be conduct that is likely to cause serious damage to the relationship between the employer and the employee. It may also breach company policies or procedures such as …Charter Values and Code of Conduct.
  • Other employees of [the company] should not be put in a position where they witness an assault or are caught in the middle of it[One employee’s] description of punches that were so close to her face that they nearly hit her evidences the danger to bystanders when they are in the vicinity of a physical altercation.
  • It is also the case that [the company] is a large employer this and other regional areas and it is likely that where a large group of its employees gather in a public venue and consume alcohol and some of that group have a physical altercation, that [company’s] interests will be damaged. The likelihood of such damage increases where there are members of the public who are not employed by [the Company] who are present at the relevant time.

Inconsistent treatment may be unfair

Employee “A” complained that the supervisor was provided an opportunity to resign his employment; an offer that was not provided to him and that this differential treatment adds to the unfairness of the dismissal; and that the Supervisor offending was more serious due to the seniority of the position within the company.

His Honour agreed:

“Inconsistent treatment of employees engaging in similar conduct may be considered relevant to whether a dismissal is unfair. However, the Commission must be satisfied that any examples of differential treatment are properly comparable”.

However, the resignation was at the request of the Supervisor (and that Employee “A”) could have made the same request, so (in the mind of His Honour) there was no differential treatment.

Outcome Employee “A”

It was found that Employee “A” knew the Supervisor at the time he punched him in the head – in a public place where some 60 work colleagues and their families were gathered and whether it was a Company sponsored event or not is not determinative of whether Employee “A’s” conduct provided a valid reason for his dismissal.

Therefore, Employee “A’s” application was duly dismissed.

Turning to Employee “B”

Remembering that Employee “B” jumped to Employee “A’s” defence and did not instigate the fight. His Honour summarising:

“[Employee “B’s] conduct on the evening of 6 December 2018 was totally inappropriate. [Employee “B”] engaged as an active participant in a verbal altercation with an intoxicated person in the presence of 90 people including 60 work colleagues, during which [Employee “B”] yelled, swore and grabbed [the Supervisor] by the front of his shirt”.

His Honour was not satisfied that there was a valid reason for [Employee “B’s”] dismissal, notwithstanding that his conduct at the event of 6 December 2019 was completely inappropriate and worthy of strong censure (such as final warning) commenting that:

“I do not accept the submissions made on behalf of [Employee “B”] to the effect that he was not the aggressor and did not provoke [the Supervisor]…I am satisfied that [Employee “B”] was far from an innocent bystander and engaged in a verbal altercation with [the Supervisor] which turned physical…”

“…[Employee “B”] had plenty of opportunity to walk away from the altercation…including when his fiancée…walked [the Supervisor] away from [Employee “B”] to attempt to defuse the tense situation which she states was occurring.

“[Employee “B’s”] statement during the investigation that he was entitled to defend himself from a stranger approaching him at the bar is disingenuous to say the least. [The supervisor] was not a stranger…”

 and on the basis of Mr Bird’s own evidence and his statements during the investigation, Mr

But there was no pre-warning from the company

Employee “B” argued that the company had not communicated its expectations with respect to his behaviour or the consumption of alcohol at the event on 6 December 2018 was rejected outright by His Honour. Commenting that:

“…Quite simply the fact that [the Company] does not warn its employees that they should not get involved in a verbal or physical altercation with other employees in a public place is so obvious that it goes without saying. Grown men should not need to be told that at an event where 90 persons including 60 work colleagues and their family members are present, they should behave appropriately and refrain from making gratuitous comments to other attendees resulting in a verbal altercation followed by physical altercation involving holding of shirts and punches being thrown”.

Employee “B’s” personal circumstances

Employee “B” and his partner have primary care of three children under the age of six. As a result of Employee “B’s” dismissal his family has been required to leave Company subsidised accommodation for which they paid rent of $60 per week and to move into accommodation for which they are required to pay rent of $500 per week. Employee “B” has been unable to secure alternative employment and his fiancée has been required to take on additional shifts.

Employee “B” also has a relatively lengthy period of employment and has a good employment record.

Conclusion in relation to whether Employee “B” was unfairly dismissed

His Honour concluded:

  • That Employee “B” was unfairly dismissed on the basis that his dismissal was harsh, unjust and unreasonable.
  • The dismissal was harsh because of its consequences for Employee “B’s” personal and economic situation.
  • He was required to remain in regional Queensland because his daughter is starting school and to move out of his Company subsidised accommodation. He now pays rent which is significantly more than he previously paid.
  • His partner has been forced to take on more shifts and he is undertaking increased childcare duties.
  • The dismissal was also harsh because it was disproportionate to the gravity of the conduct that was engaged in.
  • The dismissal was unjust because he was not guilty of the misconduct on which the employer acted. The dismissal was also unreasonable because it was decided to dismiss him on misconduct grounds in circumstances where inferences were drawn about that misconduct which were not available on the material before the employer, including errors about what he did and did not concede during the investigation process.

“In short, the dismissal was substantively unfair and the fact that it was carried out in a generally procedurally fair manner does not, in all of the circumstances, outweigh the fact that there was no valid reason for dismissal”.

Reinstatement or Compensation or nothing?

His Honour decided on reinstatement, with continuous service from the time of the dismissal to his reinstatement.

His Honour left it to the parties to decide what was a fair payment to Employee “B” for period he was unemployed; guiding the parties that if he were to determine this sum Hi Honour would discount it by 75% for the misconduct.