Verbal and physical altercation grounds for summary dismissal
News 22 November 2017

Verbal and physical altercation grounds for summary dismissal

The Fair Work Commission (the “Commission”) has found the summary dismissal of a roofing plumber involving a violent physical and verbal altercation was lawful in accordance with the Fair Work Act 2009 (Cwth) (“Fair Work Act”).

The incident occurred on a client site, within earshot of neighbouring houses. It was alleged the worker and his colleague engaged in a heated exchange of words before the disagreement evolved into a physical fight. The workers version of events suggested he was a victim of an “unprovoked” assault involving a colleague “waving [a] hammer” close to his face. It was this action that motivated the worker to place his hand on his colleagues arm and wrestle the hammer away. Following the physical altercation there was a vulgar exchange of words before the worker left the site and sought medical attention.

The colleagues were stood down whilst an investigation was conducted. They were interviewed by the employer on different days and were given an opportunity to respond with the presence of a support person. During the investigation the employer was faced with two conflicting versions of the incident. The employer chose to terminate the employment of both colleagues for serious misconduct on the basis fighting and the verbal altercation breached their policies and was a “well-established ground for summary dismissal under both company policy and at law”.

The worker lodged an unfair dismissal claim. He argued he was a victim of the attack and acted in self-defence. He also questioned the validity and procedural fairness of the investigation and decision made by the employer.

The Commission assessed the incident and accepted a secret audio recording made during the incident. Whilst this evidence was considered by the Commission, it was noted it was not made available to the employer at the time of their investigation.

The Commission found there was a valid reason for dismissal which met the high bar of serious misconduct. The Commission noted whilst the worker did not start the violent behaviour, he was an active participant. The Commission considered the conduct was “fundamentally at odds with that of an employee” and was exacerbated by the incident taking place at a client site.

When assessing the procedural fairness, the Commission considered whether the worker was notified of the reason for dismissal. The Commission was satisfied the worker was notified of the relevant issues during a disciplinary meeting and was given an opportunity to respond during the investigation and dismissal meeting.

The absence of a dedicated human resources specialist was a consideration by the Commission. The employer was commended for seeking and obtaining “the assistance of an employer organisation” and making an objective assessment of the facts. The application was dismissed.

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Bennett

Fair Work Commission Decision [2017] FWC 5595

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