The first instinct of most employers when responding to workplace violence is to simply dismiss the employee concerned. Recognising that workplace violence is unacceptable in modern Australia, the general attitude of the Fair Work Commission has similarly been to dismiss an unfair dismissal application if workplace violence is successfully established.
There are however exceptions. This article looks at some of the extenuating circumstances that the Fair Work Commission has considered relevant in finding that there was an unfair dismissal even where the employee had engaged in workplace violence.
Most people think of workplace violence as limited to actual physical assault. In reality workplace violence is a much broader problem. It is defined as any act in which a person is abused, threatened, intimidated or assaulted in his or her employment, involving an explicit or implicit challenge to their safety, well being and health.
Mar v Laser Wizard Pty Ltd
In December 2010 Peter Mar met with his manager to discuss his workplace injury. During the course of the discussion Mr Mar told his manager that he would “knock his head off” that he “should come outside” and that he “wouldn’t last one round with him”. Mr Mar was summarily dismissed 2 two days for serious misconduct.
Mr Mar subsequently filed an unfair dismissal application with the Fair Work Commission. He submitted that during the discussion his manager had provoked and harassed him about his injury. He also submitted that the dismissal was unfair because there was no actual violence, the conduct was an isolated incident and entirely out of character.
At hearing Commissioner Cargill found that Mr Mar did not intend to follow through with the threat, and by extension that there was no “imminent risk” to his manager’s health and safety. The Commissioner also accepted that the manager had provoked Mr Mar and contributed to the volatile situation. Further, she found that Mr Mar had not been provided with a proper opportunity to explain his conduct.
In these circumstances, Commissioner Cargill found that there were extenuating circumstances for Mr Mar’s conduct and that the termination of his employment was an unfair dismissal within the meaning of the Fair Work Act. She ordered that Mr Mar be paid $3,120 in compensation.
He and Lac v Peacock Bros Pty Ltd
In December 2013 Mr Sheng He and Mr Wilson Lac were summarily dismissed for punching their supervisor, Mr Petrucci in the head. Both employees filed unfair dismissal applications with The Fair Work Commission.
At hearing, the Fair Work Commission heard that Mr He punched Mr Petrucci in the head after Mr Petrucci had repeatedly sworn at and pushed him. When Mr He was restrained by another manager, Mr Lac intervened and also punched Mr Petrucci in the head.
The Fair Work Commission found that there was a valid reason for the dismissal, and that the punches to the head of Mr Petrucci were neither in self defence or provoked.
However, despite that finding, the Commission accepted both unfair dismissal claims on the basis there were significant procedural flaws with the manner in which the investigation and dismissals were carried out.
In particular, the Commissioner found that neither employee had a “meaningful or sufficient opportunity to provide either an explanation or contradictory evidence”. It was also noted that both men should have been offered language assistance so that they could fully understand and respond to the allegations.
The Commissioner awarded both men $2,400 as an unfair dismissal remedy, being the anticipated period of further employment had the investigation been appropriately managed.
These decisions demonstrate that extenuating circumstances may include, the circumstances of the violence, whether the employee was provoked, the length of service of the employee, and their work record. Further, employers who ignore their obligations to afford procedural fairness do so at the risk of an adverse unfair dismissal finding.