Two recent decisions of the Fair Work Commission (FWC) highlight the need for an employer to carefully consider whether dismissal of an employee for misconduct is proportionate to the gravity of the employee’s misconduct, especially if the misconduct occurred as an isolated incident.
Mining worker’s explosive outburst
A drill operator working on a mine site became engaged in a heated exchange with his co-worker after his co-worker expressed dissatisfaction with the cleaning and “housekeeping” of the drill being handed over to the co-worker by the drill operator at the shift handover. The drill operator had recently moved from being a truck driver to a drill operator.
The heated exchange ended with the drill operator aggressively telling his supervisor with co-worker present, “that if the co-worker continued to tell the drill operator to go back to the trucks he would cut his throat”.
The drill worker was dismissed because of his aggression and the serious nature of his threat. The FWC was satisfied on that evidence that the employer had a valid reason to terminate the drill operator's employment because of his aggression and threat.
However, the FWC found the dismissal unfair as a result of the drill operator’s:
The FWC also took into account the provocation of the verbal abuse from the co-worker. Accordingly, the FWC ordered re-instatement of the drill operator’s employment and that the employer maintain the continuity of the mineworker’s employment. However, backpay of $26,000.00 was not ordered. That reinforced the FWC’s position that the conduct was “inappropriate and must not happen again”.
A caring son’s dangerous driving
In the second decision, a truck driver was driving the vehicle along a suburban street when his mobile phone rang. He reached into his pocket, retrieved the phone, and noticed that the incoming call was from his 99-year-old mother’s aged care facility.
The driver answered the phone, placed the call on loudspeaker, and put the phone into his shirt pocket. The driver drove for about 40 seconds after he had answered the phone before stopping the truck and continuing the conversation for about 4 minutes. The driver explained that he did not leave his phone in his bag as usual because his mother was in hospital, and he wanted to be contactable to receive any communications about her medical condition.
As the driver continued driving, he answered a phone call from his sister with one hand and spoke to her for about 36 seconds whilst driving.
The FWC found the employer had a valid reason to dismiss the driver because of his serious breaches of the employer’s safety policy and road traffic laws.
However, the FWC found the dismissal unfair and disproportionately harsh.
The FWC decided that the misconduct was not at the most severe level of safety breaches because the evidence showed that the driver was mindful that his actions were safety breaches and quickly minimised the severity by putting the first call on loudspeaker, placing it in his top pocket, and then stopping the vehicle.
The FWC also found that the opportunity afforded to the truck driver to respond to the employer’s allegations was “essentially farcical” and that the employer failed to have proper regard for the driver’s personal circumstances.
The driver’s response had included a request for a similar punishment for his misconduct to his co-worker for similar conduct, namely a first and final warning. As the employer had rejected his request, the FWC found that the employer’s approach with dealing with the driver was manifestly different to that which it afforded other employees.
In addition, the truck driver had 25 years’ service and his role as a Union delegate and enthusiastic engagement in enterprise bargaining negotiations appeared to be a consideration for his dismissal as the employer saw it as a “golden opportunity to be rid of a troublemaker”.
Accordingly, the FWC ordered reinstatement however, the FWC did not order about 6 months back pay, “having regard for all the circumstances”.
Lavan comment
These two decisions serve as a reminder to employers that while an employee may have engaged in misconduct, dismissal is not always the appropriate penalty. A balanced approach is necessary to determine the fair consequences. This includes conducting an assessment to determine whether termination is a proportionate penalty. It also requires an employer to provide a genuine opportunity for the employee to respond and have regard to all the circumstances of the case, including the personal and financial circumstances of the employee.
If you would like to know more about how these changes may impact your workplace, please do not hesitate to contact Lavan’s Employment, Safety and Education team.
