Fights between co-workers lead to summary dismissal. Is it unfair?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a security guard and a security services company.
The case highlighted several important issues in employment law, including the handling of workplace conflicts, client directives, and procedural fairness in termination processes.
In this case, a series of workplace incidents culminated in a heated verbal altercation between two security guards. The employer subsequently terminated both guards' employment following a directive from their client, a university.
The dismissed worker then filed an unfair dismissal claim, challenging the fairness of the termination process and the reasons behind it.
The worker had been employed as a security guard at a university campus for about seven months before the dismissal. During this time, there were several incidents of workplace tension and conflict between the worker and his colleagues.
The worker had made multiple complaints about his co-workers' performance and behaviour. For instance, he reported issues with alarm responses and alleged that a colleague was making "loud noises" in the control room. These complaints were often escalated directly to management, bypassing normal reporting procedures.
On one occasion, the worker left his shift early, citing stress from a colleague's behaviour. He messaged his manager: "Please arrange guard. I am not feeling well. I am going home." This pattern of conflicts and complaints continued over several months.
The worker also raised concerns about what he perceived as unfair duty assignments. On one occasion, he complained about being assigned outdoor patrol duties in hot weather while another guard allegedly spent time in an air-conditioned room. He escalated this complaint to higher management, bypassing his immediate supervisor.
The tensions in the workplace continued to escalate. The worker made allegations about a colleague improperly taking items from lost property, and requested an investigation into the matter.
This led to a series of communications between the worker and management, with the worker expressing frustration at what he perceived as a lack of action on his complaints.
On the day before the final incident, the worker made several calls to management, complaining about his work assignments and his colleagues' behaviour.
He even threatened to make a complaint to the Fair Work Ombudsman, demonstrating the level of his dissatisfaction with the workplace situation.
The pivotal incident occurred during an evening shift when the worker got into a heated argument with another security guard.
According to witness testimony, both guards used highly offensive language and the situation nearly became physical.
One witness described the scene:
"[The worker was] using abusive language, and gesturing in [the other guard's] direction."
The altercation escalated quickly, with both guards hurling insults at each other. Another witness stated that one guard's level of abusive language was about "fivefold" that of the other.
The incident unfolded in stages, with the worker initially confronting his colleague verbally, then recording part of the altercation on his phone, and finally a near-physical confrontation that required intervention from other staff members.
Following the incident, both the worker and the other guard involved filed complaints against each other. The university, which was the client of the security company, conducted its own investigation and subsequently directed the employer to remove both guards from the campus.
The employer then terminated the worker's employment, citing the university's directive as the primary reason. The termination letter stated:
"After the investigation a client has advised [the employer] to remove both involved personal from the contract. This letter is to advise you of instant dismissal from all [sites] as of now."
The worker was summarily dismissed without notice or an opportunity to respond to the reasons for dismissal. The employer claimed to have attempted to contact the worker prior to the dismissal, but was unsuccessful.
The worker filed an unfair dismissal claim, arguing that he had been unfairly targeted and that the employer had not followed proper procedures in terminating his employment.
He also claimed that he had been discriminated against and unfairly treated in the months leading up to his dismissal.
The worker asserted that he had never received any verbal warnings in the past, although evidence suggested he had been verbally counselled and possibly warned on previous occasions.
He also claimed that he had been unfairly held accountable for earlier incidents while others were not.
After considering the evidence, the FWC found that while there was a valid reason for the dismissal based on the university's directive, the manner in which it was carried out was unjust. The Commission noted:
"While there was a sound reason – based upon the directive from the university and no alternative employment options – to terminate [the worker's] employment, it was not necessary for him to have been summarily dismissed."
The FWC emphasised that even though the university had the right to issue such a directive, it did not justify a summary dismissal without notice. The Commission stated:
"The consequence of this no-fault contractual right exercised by the university was that [the worker's] (and another) employment was no longer viable. But that does not allow the employer to terminate [the worker's] contract of employment summarily; the employer was required to give notice and it did not do so."
The Commission also noted that while the worker's conduct had contributed to the decision to dismiss him, this did not justify the lack of procedural fairness in the termination process.
The FWC rejected the worker's claims of long-term discrimination or targeting, finding instead that the employer had been trying to manage a challenging employee situation.
Ultimately, the FWC ruled that the dismissal was unfair due to the lack of procedural fairness and the failure to provide proper notice. However, reinstatement was not considered appropriate given the circumstances.
As a remedy, the Commission ordered the employer to pay the worker one week's wages as compensation, equivalent to the notice period that should have been provided. The FWC explained its decision:
"I am satisfied that an order for compensation in lieu of reinstatement is appropriate, and that the appropriate amount is one week's wages in lieu of the period of notice that [the worker] ought to have been provided."
This case serves as a reminder to employers about the importance of following proper procedures even when acting on client directives, and the need to provide appropriate notice or payment in lieu of notice when terminating employment.
It also highlights the challenges of managing workplace conflicts and the potential consequences of allowing such conflicts to escalate over time.
