Compensation for abusive worker responsible for “sacking himself”

Commissioner Cambridge of the Fair Work Commission has awarded compensation to a “difficult” worker who was dismissed for engaging in an “expletive laden tirade” against his operations manager – including twice hanging up on him during phone discussions – finding the employer’s process in terminating the employee by email to be “severely flawed”, despite the valid reason for dismissal.

The joiner/cabinetmaker had been employed for over five years when, on 27 February 2020, he took offence over his supervisor’s handling of him parking in a location all employees had previously been advised not to. The worker had deliberately ignored the previous instruction in the interest of protecting a motor bike which had been strapped into the back of his ute. Later the same day, the issue was raised in a phone call with the operations manager wherein the discussion “degenerated into an unpleasant exchange involving aggressive and abusive language” that ended only when the joiner called the operations manager a “f***ing smart a***” and hung up. When the operations manager called back and generously suggested it seemed the worker’s phone “may have dropped out”, the joiner asserted that he had “deliberately hung up on the call”. The argument between the two men then continued, concluding only after the joiner had delivered an “expletive laden tirade” and hung up on the operations manager for a second time. He then promptly left the factory and went home for the day.

Upon reflection and, following discussion between the operations manager and the employer’s managing director, it was determined the joiner’s behaviour constituted serious misconduct. In addition, the managing director contemplated the joiner’s conduct in the context of what he considered to be a history of the worker having been “argumentative and abusive”. The employer’s financial controller was instructed to compile a termination letter and to email it to the joiner, which occurred shortly before 5pm the same day. The termination letter identified the joiner’s employment had been terminated for serious misconduct which warranted summary dismissal.

Unfortunately, the joiner failed to check his inbox that afternoon and arrived for work the next morning on 28 February. The operations manager verbally confirmed the decision had been made to terminate the worker with the dismissal letter having been emailed the day prior. After further brief discussion with the operations manager, the joiner collected some of his tools and personal belongings and left. He returned several days later to collect the remainder of his personal items which he had been unable to take with him on 28 February. The joiner subsequently pursued a WorkCover claim, which was successful, and had not worked since the dismissal.

Despite acknowledging that a “level of tit-for-tat verbal aggression and insult between an employee and their supervisor may, in many workplace settings, be tolerated,” Commissioner Cambridge found that “in even the most robust of workplace environments, conduct whereby an employee told their supervisor that they were a f***ing smart a*** and twice hung up on them, would likely represent misconduct that strained the employment relationship to breaking point.”

In finding the joiner’s outburst constituted a valid reason for dismissal, Commissioner Cambridge noted that the joiner’s behaviour “could not be justified by any level of initial contribution on the part of [the operations manager], and represented serious misconduct that was plainly contrary to any continuation of the employment relationship”, adding that, “this conduct amounted to the [joiner] sacking himself.”

Notwithstanding that the joiner’s conduct constituted grounds for dismissal, the Commissioner was critical of the termination process adopted by the employer finding the approach “severely flawed”, noting “it denied the [joiner] natural justice.” In pointing out that the joiner was entitled to an opportunity to be heard before the managing director had settled on the decision to terminate, Commissioner Cambridge stated:

“Even argumentative and difficult people are entitled to natural justice. There was no justification for not hearing from the [joiner] before the decision to dismiss was made. Further, the communication of advice of dismissal via email was entirely inappropriate and unnecessarily harsh.”

The Commissioner took opportunity to reiterate that “communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. Unless there is some compelling reason like extensive distance or genuine safety concern, advice of dismissal from employment is a matter of such significance that it should be conveyed in person.”

Although the Commissioner found the joiner was dismissed for a valid reason involving his serious misconduct, “the significant procedural defects evident in respect of the determination and implementation of the dismissal of the applicant have rendered the summary dismissal to have been harsh and unjust.” The Commissioner determined the joiner would have been terminated within a period of two weeks, had the employer given “a proper and just contemplation of [the joiner’s] misconduct”. Discounting the remuneration amount for two weeks’ wages by 50% owing to the joiner’s misconduct, the worker was awarded $1515 compensation.

An appeal was lodged against the decision on 13 October 2020.

Jones v Karisma Joinery Pty Ltd [2020] FWC 5051 (25 September 2020)