Worker disputes allegations, fairness of process
The Industrial Relations Commission of New South Wales recently dealt with a case involving a worker who was dismissed from his role as a team member in resource recovery at a local council. The worker had filed an application for unfair dismissal, challenging the grounds and process of his termination.
He argued that he had acted in self-defence during one of the incidents leading to his dismissal, claimed that the employer had not adequately addressed his prior complaints about a colleague, and asserted that the investigation process was flawed. The worker also said that his dismissal was harsh due to his long service and the significant economic impact on his family.
The case centred around two incidents of alleged misconduct by the worker, involving aggressive behaviour and physical violence towards a colleague. The employer cited these incidents as the basis for dismissal, while the worker disputed the allegations and the fairness of the process.
The worker had been employed by the council since November 2014. His role involved collecting and emptying garbage bins. The incidents in question occurred on 24 July 2023 and 23 November 2023, both involving interactions with a colleague who sometimes acted in a supervisory role.
In the July incident, the employer alleged that the worker yelled at the colleague in an aggressive and intimidating manner. The colleague was acting as a relief supervisor at the time and was in the area to deal with a complaint about bins not being put back correctly. The November incident was more serious, involving allegations of physical violence.
The worker contested these allegations, claiming he felt bullied and harassed by the colleague. He also said that the employer had not adequately addressed his prior complaints about the colleague's behaviour. The worker had made complaints about the colleague in July 2023, but these were investigated by the employer and found to be unsubstantiated.
The employer conducted an investigation into both incidents. The investigation process included interviewing relevant witnesses, issuing a letter of allegations to the worker, providing the worker with CCTV footage of the November incident, and holding a meeting with the worker to hear his response. After concluding the investigation, the employer ended the worker's employment on 1 December 2023, providing five weeks' pay in lieu of notice.
The worker argued that his dismissal was unfair on several grounds. He denied the alleged misconduct and claimed self-defence in the November incident.
He said that the employer had not adequately addressed his prior complaints about the colleague and argued that the investigation was not thorough or fair.
Additionally, he claimed the dismissal was harsh due to his length of service and the economic impact on his family.
The employer maintained that the dismissal was justified, citing the seriousness of the misconduct, particularly the physical violence in the November incident.
They argued that they had followed proper procedures in investigating the incidents and making the decision to dismiss the worker.
After considering the evidence, including CCTV footage and witness testimonies, the Commission made several key findings.
Regarding the July incident, the Commission accepted the employer's version of events. The Commission found that on 24 July 2023, the worker had approached the colleague's car and yelled at him.
For the November incident, the Commission found that the worker had initiated physical contact. The Commission stated:
"[The worker] barged [the colleague] with his shoulder, which knocked [the colleague] backwards... [The worker] pushed [the colleague] on his right chest shoulder area which threw [the colleague's] shoulder back... [The worker] hit [the colleague] with his open hand, and then pushed [the colleague] on the right side of his neck."
The Commission emphasised the seriousness of workplace violence, noting:
"[The employer] has established to the relevant standard the allegations in respect of [the worker's] engaging in violent conduct towards [the colleague] on 23 November 2023 that it found substantiated. The established conduct is misconduct. Violence in the workplace is a serious matter."
The Commission considered several factors in determining whether the dismissal was harsh, unreasonable, or unjust. It found no evidence to support the worker's claims of bullying or provocation that would justify his actions.
The Commission deemed the employer's investigation to be thorough and fair, noting that the employer had interviewed witnesses, provided the worker with a letter of allegations, and given him an opportunity to respond.
While acknowledging the worker's long service, the Commission noted that this also meant the worker should have been aware of workplace expectations. The Commission said:
"[The worker's] length of service does not lead me to conclude that the Dismissal was disproportionate or harsh when considered in the context of the established misconduct."
The Commission considered the significant financial consequences for the worker but determined that this alone was not sufficient to render the dismissal harsh.
The worker had stated in his evidence that he "cannot pay the bills and now my wife and I have had to sell our home. We have missed mortgage payments." However, the Commission found that these economic consequences did not outweigh the seriousness of the misconduct.
Consequently, the Commission dismissed the worker's application, finding that the dismissal was not unfair. The Commission stated:
"Given that the misconduct involved the instigation of violence in the workplace, even these very significant economic consequences for [the worker] do not lead me to conclude that the dismissal was harsh."
The Commission also noted:
"[The worker's] length of service does not lead me to conclude that the dismissal was disproportionate or harsh when considered in the context of the established misconduct."
Finally, the Commission emphasised the importance of proper investigation and disciplinary procedures, stating:
"[The employer] followed a proper process and gave [the worker] an opportunity to be heard on both the findings and the penalty. There was no denial of procedural fairness."
This case serves as a reminder to employers of the importance of thorough investigations and fair processes when dealing with serious misconduct allegations. It also highlights that while factors such as length of service and economic impact are considered, they may not outweigh the seriousness of violent conduct in the workplace.
