The facts of the case

A shopfitter (the “Employee”) had been employed with the same company for more than five years. In December 2019, the employee was transferred to a different factory site following “a heated argument which included exchanges of aggressive insults and profanities”.

On 27 February 2020, the Employee arrived at work and parked in an area where he and other employees had been instructed not to park, despite being aware he was required to park in a car park adjacent to the factory. The Employee was therefore asked to move his vehicle. The Employee refused to comply because he was concerned a motorbike secured to the back of the vehicle may be stolen. The supervisor rejected the employee’s protests and directed the employee to move the vehicle.

The Employee went on to inform the supervisor he was going home and drove out of the factory. As the Employee was driving away, a representative of the business owner agreed with the Employee’s protest and advised that the Employee could park his vehicle there. The Employee parked the vehicle and began work.

That afternoon, the employee asked his supervisor if he could leave 30 minutes early. The Employee was told to call the Operations Manager. After calling the Operations Manager, the phone call escalated into a heated discussion regarding the parking incident of that morning. During the argument, the Employee insulted the Operations Manager with profanities and hung up the phone.

The Operations Manager called back and said he believed the phone call dropped out. The Employee informed the Operations Manager the phone call had not dropped out and that they had deliberately hung up on the call. The abusive and aggressive argument continued before the employee again hung up and left the factory.

The Operation Manager informed the Managing Director of the phone call. The Managing Director decided the nature and extent of the Employee’s behaviour went beyond the standard of acceptable behaviour and constituted serious misconduct. At 4:53pm an email was sent to the Employee advising his employment was terminated for serious misconduct.

The Employee did not see the email and attended work the following day on 28 February. The Employee was greeted by the Operation Manager who advised the Employee his employment had been terminated in line with the email sent the previous evening.

The decision

With any unfair dismissal claim, the Fair Work Commission (the “Commission”) must determine whether the dismissal was harsh, unjust or unreasonable. The first consideration is whether there was a valid reason for dismissal.

Noting the reason for dismissal was the Employee’s conduct, namely his behaviour during the telephone call with the Operations Manager, the Commission observed:

“[i]n workplaces such as factories and construction sites there is generally a robust level of verbal communication between individuals that would ordinarily not be tolerated in other more genteel workplace settings. The language used by the applicant, other workers, and his supervisors would regularly involve some aggressive exchanges including the use of profanity and insult. However, there are circumstances where it became clear that despite the generally acceptable level of aggression and insult that might be part of regular robust exchanges, a line has been crossed.”

Despite the Commission being satisfied there was a valid reason for dismissal, it considered there were significant errors in the process. In particular, the employee did not have an opportunity to respond before the termination was finalised.

The Commission noted when it comes to dismissals, even “difficult” employees are entitled to natural justice and that advising employees of their dismissal via email or text “should generally be avoided... unless there is some compelling reason like extensive distance or genuine safety concern”.

Whilst the Commission held the dismissal was unfair because of the procedural failings, when determining the appropriate level of compensation it had regard to the serious nature of the conduct and the amount of time which would have been taken to follow a fair and reasonable disciplinary process. The Commission ordered the business to pay compensation equivalent to two weeks wages but discounted the payment by 50% on account of the nature of the Employee’s conduct.

Learnings for business

Having a valid reason isn’t the only consideration when contemplating dismissal or taking disciplinary action. Businesses must follow a fair and reasonable process. Businesses may need to adapt their processes particularly as it can be difficult to have face to face meetings. In this case the Commission highlighted communications through email or text should generally be avoided.

Procedural fairness is a key consideration and despite the current circumstances, businesses must provide an employee with an opportunity to respond. A failure to do so will not only result in a successful claim but will result in businesses spending a significant amount of time and money defending the claim.

How the VCCI can help your business

Complete Members of the Victorian Chamber have unlimited access to the Advice Line as part of their membership. The Workplace Relations Advice Line offers general advice on disciplinary matters including the process and the issues a business should consider before dismissing an employee.

Our experienced Workplace Relations Consultants are also able to provide strategic advice when preparing for a disciplinary process. In addition, the Consulting team can provide coaching and documentation to ensure you have the tools to run a robust process. If you receive an unfair dismissal claim our Consultants can also assist by responding to the claim and advising or representing you in the Commission.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

Written by Michaela King, Workplace Relations Advisor

[2020] FWC 5051