Generally, employees sacked for workplace fighting will find little sympathy before the FWC.
However, the appropriateness of an employer’s disciplinary actions will always be balanced against the facts.
This recent decision demonstrates the point that regardless of the presence of a valid reason, employers need to consider all relevant facts and circumstances before sacking an employee over workplace fighting.
In a different result from an earlier reported fighting case, this employer suffered the ultimate embarrassment before the FWC.
The employee in question (Mr Browne) had been employed by Coles for his whole working life.
After 18 years of unblemished service, animosity with a co-worker came to a head in October 2013 when a fight broke out during a shift at Coles’ Goulburn Distribution Centre.
For approximately 15 minutes before the fight took place, Browne was provoked with fake crying gestures and homophobic remarks (“your boyfriend’s not here to help you”), taken to relate to his sister-in-law’s recent death and the recent departure of a long-term colleague.
When Browne approached the instigator to ask what his problem was, he was rushed by the co-worker who began gesturing and yelling at him.
Browne pushed the co-worker in the chest and then began to grapple with him.
Both men fell to the ground and Browne was set-upon, receiving two blows to the head.
Browne immediately reported the incident to management and both employees were stood down while an HR investigation took place.
The HR Investigation
The employer held multiple meetings with both employees as well as interviewing a number of witnesses.
Taken at face value, all of the essential elements of a workplace investigation appeared covered.
The employer felt justified in its dismissal of both employees for serious misconduct and for breaching its workplace code of conduct prohibiting fighting.
The employer considered that Browne’s actions meant it could not be confident of his continued good conduct in the future.
Both employees received their marching orders.
So why was the employer ordered to reinstate Browne?
The FWC made a number of illustrative comments throughout its judgement, noting that it is not unreasonable for adult employees to first try and peacefully resolve interpersonal issues in the workplace before involving management.
In this case however, the FWC considered “there could be no doubt that any act of physical violence (which would include pushing someone) would be a substantial breach of the Code.”
As a result, the FWC recognised that the employer had a valid reason for Browne’s dismissal.
During the case, the FWC went on to consider a number of required criteria including whether there were any relevant matters it should take into account.
The FWC considered the following matters should have been relevant to the employer’s decision about an appropriate disciplinary sanction:
- Browne’s 18 year unblemished work record
- Without verbal provocation from the co-worker the incident would have not occurred
- Browne’s behaviour was confined to pushing and grappling (did not throw a punch)
- Browne immediately reported incident to management
- The consequences of dismissal would have been financially and emotionally severe upon Browne.
Given Browne’s 18 year record, the FWC viewed the employer’s fears about a loss of trust in his future conduct should have been allayed because his actions were one-off and out of character.
So, despite an otherwise valid reason, by failing to take into consideration all the relevant circumstances, Browne’s dismissal was considered harsh and therefore, unfair.
Embarrassingly for Coles, its sacking of the employee was overturned and reinstatement ordered.
Lessons for Employers
When considering the disciplinary options over employee misconduct, employers need to take account of all relevant facts and circumstances, including the gravity of the wrongdoing and the employee’s personal circumstances.
Despite the presence of a valid reason for a dismissal, an employee’s sacking could nevertheless be considered harsh if there are flaws in the employer’s procedure.
Even where a workplace investigation has seemingly ticked all of the procedural boxes, it is important not to forget to consider the employee’s relevant personal circumstances.
In this case the employer’s inflexible application of its workplace standards without proper regard to other relevant factors brought its dismissal action undone.
All in all, an expensive and embarrassing lesson before the FWC.
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 David Browne v Coles Group Supply Chain Pty Ltd  FWC 3670