This case sheds light on the importance of an anti-violence policy in the workplace
In a recent case, the Industrial Relations Commission considered whether an altercation between two co-workers could give rise to a summary dismissal. Although the worker asserted that he suffered amnesia, causing him not to remember the brawl, the Commission was not persuaded that his dismissal was harsh, unjust or unreasonable, and set aside his claim. The case provides an important reminder for employers to promote a safe and inclusive culture in the workplace.
The worker commenced employment as a security officer with a hospital in regional NSW in 2014. One evening in September 2019, the worker was engaged with another security officer, with whom he had a “difficult, if not acrimonious relationship”, to escort a patient to the hospital’s mental health unit. As they were leaving the unit, the security officer swung a punch at the worker, leading the worker to punch back several times before colleagues intervened to break up the brawl. Following an investigation into the altercation and a subsequent show-cause meeting, the hospital summarily dismissed the worker from his employment. He applied to the Industrial Relations Commission, submitting that his dismissal was unfair.
The worker relied on the medical evidence of a specialist neurologist to assert that, after the other security officer initially hit him, he suffered “anterograde memory loss to the events that occurred shortly afterwards”. However, the Commission preferred the evidence of a consultant neurologist, who opined that there was no likelihood that the initial assault would have caused a concussion or amnesia during the incident.
The worker also submitted that his retaliation was an automatic “fight or flight” response to the assault, not a deliberate decision to engage in an altercation. However, the Commission found that the worker “did more than lash out in an instinctive response” and would have continued “were it not for his colleagues restraining him”.
“While he was the initial victim of an assault and it may have been understandable to lash out in response, he went beyond instinctively lashing out and became the aggressor,” the Commission said. With this, the Commission found that, based on his misconduct, the worker’s dismissal was not unfair.
