Recently an employer was faced with a very difficult decision. Following 30 years of almost unblemished service, an employee engaged in a physical attack on a co-worker. The employer (DP World) dismissed both employees and what followed was almost 2 years of litigation involving 2 appeals before the dispute was ultimately decided.
In 2011, an employee (Mr Lambley) viciously attacked a co-worker. This attack was caught on CCTV footage and both employees were subsequently sacked. Lambley decided to appeal[1] his dismissal through Fair Work Australia (now the Fair Work Commission) and it was initially held that he should be reinstated.
Appeals
Following a subsequent appeal by the employer, the full bench of Fair Work Australia overturned the decision and upheld Lambley’s dismissal. Finally, Lambley appealed to the Federal Court and although both Fair Work Australia and Federal Court agreed that the attack was almost certainly provoked by “years of bullying and provocation”, a watertight zero-tolerance policy towards verbal and physical violence coupled with an exemplary HR investigation, allowed DP World to safely sack Lambley without the dismissal being construed as harsh, unjust or unreasonable.
Vindication
The employer’s HR investigation was ultimately vindicated, despite Lambley’s protestations of mitigating circumstances; including allegations of workplace bullying and his history with the employer. While workplace bullying is clearly an increasing problem in Australian workplaces, HR investigators should not, and now legally cannot, be blindsided by one aspect of the case.
What did the employer do right?
By ensuring that they conducted a bullet-proof HR investigation that included interviewing both employees and witnesses, referring to and following their own disciplinary policies for consistency and relying on the zero-tolerance violence policy, DP World and ultimately the Federal Court of Australia, agreed that these extenuating circumstances were not enough.
[1] Mr Steven Lambley v DP World Sydney Limited T/A DP World Sydney [2012] FWA 1250
[2] DP World Sydney Limited v Mr Stephen Lambley [2012] FWAFB 4810
[3] Lambley v DP World Sydney Limite [2013] FCA 4
