FWC: Look at worker's history before enforcing severe disciplinary action

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case that highlights the complexities of workplace incidents and disciplinary actions.

The case involved a worker who was dismissed after an altercation with a client, but who argued that his actions were appropriate given the challenging circumstances he faced.

The worker pointed to his long service, good conduct, and specialised training as reasons why his dismissal was unfair. This case raises important questions about how employers should handle difficult situations and what factors they need to consider before terminating an employee.

Workplace incident and alleged altercation

The worker had been employed as a security officer by a large security company for nearly eight years. He primarily worked at a hospital's mental health ward, where he had developed a good rapport with staff and patients. The worker was also studying mental health to enhance his skills in this challenging environment.

On 19 February 2024, an incident occurred between the worker and a patient in the mental health ward. The patient reportedly verbally abused the worker, using racist language and making threats. The situation escalated when the patient attempted to grab the worker's name badge.

The employer alleged that the worker struck the patient in the back of the head as the patient was walking away. However, the worker denied this claim, stating that he had restrained the patient using techniques he had been trained in, after the patient had shown aggressive behaviour.

Employer’s investigation into the incident

Following the incident, the employer conducted an investigation and ultimately decided to terminate the worker's employment. The employer cited a loss of trust and confidence, and viewed the worker's actions as serious and wilful misconduct warranting immediate termination without notice.

The worker was given an opportunity to respond to the allegations, but the FWC noted that he was only given one day to respond to the show cause letter. The employer also did not consider the worker's request for a transfer to another site as an alternative to termination.

Is it appropriate conduct at work?

The worker maintained that his actions were appropriate and proportionate given the challenging situation he faced. He emphasised his long service, good conduct, and experience working in the mental health ward. The worker also highlighted his ongoing studies in mental health and the rapport he had built with staff and patients over the years.

In his testimony, the worker provided a detailed account of the incident:

"[The worker] grabbed with [the worker's] left hand, yes. ... [The worker's] right was under - is under [the patient's] neck. So when [the worker] restrain[s] [the patient] on the floor [the worker's] not going to hurt [the patient's] head. [The worker] was scared of that."

FWC looks into worker’s intentions

The FWC examined the evidence presented by both parties. It found several inconsistencies in the employer's case, including the lack of direct witness testimony from nursing staff who allegedly saw the incident. The Commission also noted that video footage relied upon by the employer only showed the aftermath of the incident, not the incident itself.

The FWC believed the worker's account of events, finding him to be honest and credible. The Commission stated:

"[The Commission] consider[s] the response of [the worker] to the very challenging situation that confronted [the worker] on 19 February 2024 was, in all the circumstances, appropriate, reasonable, and proportionate."

The FWC concluded that the worker's dismissal was both unreasonable and harsh. It explained its reasoning as follows:

"[The Commission is] satisfied that the dismissal of [the worker] was unreasonable because there was no valid reason to dismiss [the worker]. [The Commission] also consider[s] the dismissal was harsh because, even if the reason for the dismissal was regarded as valid, the dismissal was disproportionate to what [the worker] did and does not have regard to [the worker's] previously unblemished record over nearly eight years, in a challenging employment context."

The FWC further emphasised that the dismissal was too severe:

"[The Commission does] not, however, consider the dismissal of [the worker] was a proportionate response to [the worker's] conduct. When considered within its context, the conduct of [the worker] was not sufficiently serious as to warrant dismissal."

These findings show that employers need to carefully consider whether their disciplinary actions match the alleged misconduct, especially for long-standing employees with good work records. It also emphasises the need for thorough investigations before taking any disciplinary steps.