Worker argues unfair dismissal amid allegations of altercation against co-workers
The Fair Work Commission (FWC) recently dealt with a case involving an employee who claimed he was unfairly dismissed by his employer after engaging in physical altercations with co-workers.
The decision sheds light on the consequences of misconduct in the workplace and the factors considered by the FWC when determining the fairness of a dismissal.
The worker was employed as a team leader in the company, supervising about 10 other employees. His termination arose from two separate incidents that occurred on May 11 and 12, 2023.
Workplace altercation
On May 11, an altercation took place between the worker's brother, who was also his co-worker, and another colleague. The worker intervened and removed his brother from the scene.
However, upon re-entering the building, they had another confrontation, prompting the worker to intervene again. There were allegations that the worker had done a "standing guillotine choke," and attempted punches.
The worker argued that he was merely "provoked" and that his conduct was a "fight or flight response," emphasizing that he was only "human." He filed an application before the FWC seeking an unfair dismissal remedy, claiming that his dismissal was unjust.
The employer maintained that the worker's termination was a result of serious misconduct arising from the two incidents on May 11 and 12, 2023.
The next day, the worker had a confrontation with another co-worker who accused the worker's brother of rape and sexual assault. The worker then "threatened to kill [him], shouting in the office, [and] approaching [him] face-to-face, and moving outside and punching a pallet."
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Following these incidents, the worker was suspended while the employer investigated the allegations. The worker was also requested to provide a written statement concerning the events, which he submitted on 15 May.
Two days later, the employer issued a termination letter, effective the same day, citing serious misconduct as the reason for the dismissal. The worker did not dispute that the events occurred, but his argument was that his dismissal was harsh, as it was disproportionate to his conduct.
He said, “he was provoked by his co-workers” and said his termination was unfair because “the [employer] took no action to discipline his co-workers” but dismissed him.
‘Physical assault’ at workplace
The worker tried to explain the first workplace altercation with his brother. He said that he “had been provoked by his brother, who pushed him.”
He said, “the reason he swung at his brother and put him into ‘a constrictive hold’ was because he believed that physical assault is warranted as a response to physical assault.”
He conceded that “his actions may have been excessive” but said that he had a “documented anger management problem.”
As for the worker’s incident with the other co-worker (rape and sexual assault allegations against his brother), the worker said he was “highly emotional and acted out of frustration.”
He also “pointed to the fact that he did not touch [him].” The worker “maintained that he was subject to ‘the highest form of provocation,’ particularly as what he considered to be an ‘out of work matter’ was inappropriately raised with him during work hours.”
The worker said that he was “in a fit of rage” because of his co-worker’s “defamation of character.”
Employee dismissal ‘reasonable response’
Meanwhile, the employer said the dismissal was not unfair, as the worker engaged in serious misconduct (being an assault).
It also said he “demonstrated a lack of remorse by attempting to shift the blame to other employees” and “by minimising his actions.”
The employer further said that “the worker’s response to any provocation was disproportionate, and that provocation does not mean that there was no valid reason for the dismissal.”
Additionally, the employer acknowledged that the worker was only notified of the reason for his dismissal after the decision had been made. However, it said, “that if there was any procedural deficiency, given the serious misconduct, it does not render the dismissal harsh, unjust or unreasonable.”
According to records, the employer said “that it accepted there was some provocation, [but the worker] went far beyond any reasonable response.”
FWC rules on employee termination
“I was provoked with the intention to get me angry. As I only acted in the traits of a human and that is fight or flight response, this is why it is unfair,” the worker said in his submission against his dismissal.
However, the FWC said it was "not satisfied that the provocation that the [worker] relied on to defend his actions was a reasonable justification for the way he retaliated."
The Commission found that the worker's conduct was “serious,” and it noted that he "has demonstrated a lack remorse or insight into his behaviour." Thus, it said the employer’s decision to terminate his employment was not harsh, unjust or unreasonable.