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Unfair dismissal despite workplace fight not ‘handbags at ten paces’

A major national employer is now facing the prospect of having to pay a fighting employee potentially thousands of dollars because his summary dismissal was found to be unfair[1].

In the Fair Work Commission’s view, the incident was not a minor performance issue but a “grave and serious rupture in the employment relationship”.

The FWC even recognised the dismissed employee as having a propensity to consider “physical violence as a ready means to resolve conflict”.

Yet despite a valid reason for the employee’s dismissal, many of the workplace investigation’s procedural aspects caught the FWC’s attention.

Inexperience and a failure to adhere to the fundamentals of workplace investigations have once again left an employer in a completely avoidable situation.

Background

The employee in question, Mr Fitzpatrick, had been working at Bunnings since October 2005.

During that time he had received minor counselling regarding an aggressive outburst towards a co-worker in 2012.

In September 2013, an exchange regarding a customer’s order led to a heated discussion involving swearing and a physical altercation with another employee.

The two exchanged multiple expletive-laden comments before the employee (Mr Fitzpatrick) grabbed the co-worker by the collar of his shirt and held him against a desk.

They were then interrupted by a third employee attempting to diffuse the situation.

Both employees were suspended pending the outcome of a workplace investigation.

A valid reason, but…

The FWC was satisfied that the employee (Mr Fitzpatrick) had engaged in “threatening physical contact” with his co-worker and that this contact was a continuation of a “distinctly abusive exchange of swearing” outside the office.

The FWC was also satisfied that while the incident (although not considered at the more severe end of the violence spectrum) was serious and aggressive, and a sufficient reason for the employee to be validly dismissed.

In that regard, the FWC commented:

“What is clear is that this incident was not “hand bags at ten paces” but a sufficiently serious incident between two work colleagues …”

The FWC recognised that actions destroyed the fundamental trust and confidence expected of an employee.

However, in a cautionary note for employers, the FWC made it clear that a valid reason is “but one of the criterion” in determining whether a dismissal was harsh, unfair or unreasonable.

A Flawed Investigation

The appointment of two managers, inexperienced in workplace investigations, illustrated the necessity for only properly trained employees to conduct a workplace investigation.

The two managers appointed to investigate were, by their own admission, completely inexperienced in HR practice and procedure.

The FWC recognised that despite the two investigating managers’ inexperience the employer’s HR department left it [the investigation] to the managers to “sort out”.

In condemnation of the HR department’s actions the FWC said:

“…the approach adopted by the Employer’s Human Resources Department can be likened to a school taking Year 11 students on a bush camp and requiring them to go bushwalking without any training, teacher, map, compass or survival equipment. It is no wonder that the investigation and ensuing disciplinary process went amiss.”

Other Issues

Other issues with the disciplinary process that went against the employer included:

  • Mr Fitzpatrick was not notified in writing of the reasons for his dismissal;
  • The two lead investigators had, in the FWC’s opinion, preconceived notions about the alleged wrongdoer and a perception of bias;
  • A witness’s version of events was recorded as “fact” prior to meeting with the alleged wrongdoer; and
  • The investigation and disciplinary meeting were rolled into one – crystallised by the disciplinary meeting being adjourned to hold a reconstruction of the incident – and then reconvened – to impose the sanction of immediate dismissal for serious misconduct.

The FWC viewed reinstatement as inappropriate, in part due the employee’s actions as destroying the fundamental relationship of trust and confidence.

An order for compensation will be made by the FWC at a later date.

Lessons for Employers

As is often the case employers can get so caught up in an apparent ‘gotcha’ moment that they forget (and/or simply do not know how to) conduct a fair and appropriate workplace investigation.

Here, there was a sufficiently serious incident between two work colleagues justifying “swift and decisive action” by the employer.

What occurred instead was an embarrassing, mishandled HR investigation that will likely result in the employer having to pay monetary compensation to the workplace wrongdoer.

Unfortunately for the employer, its actions have became a case study example of the pitfalls of not appointing appropriately trained staff to conduct a workplace investigation.

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[1]Mr Michael Fitzpatrick v Bunnings Group Ltd T/A Bunnings [2014] FWC 1869

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