Security officer dismissed after incident with patient
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker challenged his termination, arguing that his actions during a workplace incident did not constitute misconduct.
The worker, who had served his employer for eight years with an unblemished record, said the incident led to his immediate stand-down and subsequent dismissal.
The case sheds light on how the FWC approaches compensation calculations in unfair dismissal matters, especially when considering factors like length of service, post-dismissal employment efforts, and the impact of dismissal on a worker's wellbeing.
The matter involved a security officer who worked at a healthcare facility. He was stood down on 22 February 2024 following an incident with a patient on 19 February 2024, and his employment ended on 15 March 2024.
Before these events, he had maintained an unblemished employment record over his eight years of service and had developed strong working relationships with both colleagues and health professionals at the client site.
The employer, a national security services organisation with more than 6,000 employees, dismissed the worker following the February incident.
However, in the unfair dismissal hearing on 18 October 2024, the FWC found that the security officer's actions did not amount to misconduct. The worker did not seek reinstatement, which led the FWC to consider compensation as the appropriate remedy.
The FWC relied on established principles to determine compensation. As stated in the decision:
"Lost remuneration is usually calculated by estimating how long [the worker] would have remained in the relevant employment but for the termination of their employment. We refer to this period as the 'anticipated period of employment'..."
The Commission determined that the security officer would have likely stayed with the employer for at least another year.
This assessment took into account his long service record, positive workplace relationships, and the fact that there was no evidence suggesting he planned to leave or face termination for any other reason.
Following his dismissal, the security officer experienced significant emotional distress from the February incident. He consulted a clinical hypnotherapist, who reported that the incident had affected his daily life, marriage, sleep patterns, and overall sense of security.
Despite these challenges, he actively sought new employment, submitting seven to eight job applications weekly for positions as either a security officer or disability support worker.
His applications for disability support work were unsuccessful due to lack of relevant experience, and many of his security industry applications received no response. After approximately 14 weeks, he secured casual employment as a security officer at an art gallery, though at a significantly lower weekly rate of $1,026.25 compared to his previous earnings of $2,224.56 per week.
The FWC's assessment involved several key considerations. As noted in the decision:
"The assessment of compensation I am required to undertake is directed towards the remuneration lost in consequence of [the worker] having been unfairly dismissed."
The Commission emphasised the importance of a methodical approach:
"...in quantifying compensation, it is necessary to set out, with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified."
The final determination stated:
"The overarching requirement in assessing compensation is to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case."
After considering the worker's previous earnings, reduced income at his new job, and the statutory compensation cap based on his earnings in the 26 weeks before dismissal, the FWC awarded $57,838.56 plus superannuation, less tax.
The Commission noted that the employer's size and resources meant the compensation order would not affect its viability, and no reduction was warranted for misconduct as the worker's actions were found not to constitute misconduct.
