Worker fired for fighting with co-workers says he was 'provoked'

A worker recently filed an unfair dismissal claim against his employer after he was allegedly fired due to the physical altercations that he had with his co-workers.

He argued that he was merely “provoked” and that his conduct was a “fight or flight response,” adding that he was only “human.”

The worker, Travis Brown, filed an application before the Fair Work Commission (FWC) seeking an unfair dismissal remedy.

The worker said he was unfairly dismissed from his position at Famios Pty Ltd. He was employed as a team leader, supervising approximately ten other employees.

According to records, his termination was a result of serious misconduct arising from two distinct incidents occurring on 11 May and 12 May 2023.

Physical altercation at the workplace

On 11 May, an altercation involving his brother (who was also his co-worker), Tobias Herbert, and another colleague, Jakob Organ.

As the two parties fought, the worker intervened and removed his brother from the scene. After re-entering the building, Herbert pushed Organ, prompting the worker to intervene again.

This time, Herbert pushed the worker, and in response, the worker confronted him, put him in a "standing guillotine choke," and attempted punches.

The next day, the worker had a confrontation with another co-worker, John Barnes, who accused the worker's brother (Herbert) of rape and sexual assault.

The worker then "threatened to kill Barnes, shouting in the office and at Barnes, [and] approaching Barnes face-to-face, and moving outside and punching a pallet."

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.

The worker argued ‘physical assault is warranted as a response to physical assault’

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 Barnes (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 Barnes.” 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 Barnes’ “defamation of character.”

The employer said the worker ‘went far beyond any 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.”

The employer said, “that it accepted there was some provocation, [but the worker] went far beyond any reasonable response.”

Is it unfair to dismiss a worker who allegedly ‘defended’ himself?

“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.