Martial Arts Instructor Wins Unfair Dismissal Claim

A martial arts/self-defence instructor has won his unfair dismissal claim in the Fair Work Commission (FWC).

Background

The applicant in the matter was employed as a qualified and certified Krav Maga instructor for the business which operates three gyms located in Sydney providing instruction and training in Krav Maga. The Kav Maga martial arts/self defence discipline was originally developed by the Israeli army in the 1940s and has since been introduced in military and police forces around the world. 

The central issue in this case involved the applicant’s use of his mobile phone during classes. The applicant attended a scheduled meeting on 21 May 2018 to discuss a profit-sharing arrangement when the employer decided to raise the issue of mobile phone use. When the applicant denied any significant use of his mobile phone, the respondent showed him historical CCTV footage. Understandably surprised, the applicant then signed a letter of resignation prepared by the respondent. The respondent’s manager and owner, who’d known the applicant since their time in the Israeli army, then urged the applicant to return to Israel.

After some further correspondence, the applicant sent an email retracting his resignation given earlier that day. Despite the applicant’s attempt to keep his employment, the respondent sent him a letter two days later confirming he had been summarily dismissed. The letter stated that his conduct had endangered the safety of clients and was damaging to the reputation of the business.

What the FWC found

The Commission rejected the respondent’s submission that the applicant’s actions qualified as serious misconduct and concluded that the dismissal did not comply with the Small Business Fair Dismissal Code (SBFD).

The Commission said that the applicant’s use of his mobile phone did constitute a valid reason for dismissal. This was based on the fact that full contact sparring and martial arts training are quite dangerous and require expert supervision. However, the employer breached their obligation to grant an opportunity for the applicant to respond to allegations of misconduct. Commissioner Cambridge of the FWC said:

In summary, the dismissal of the applicant was firstly not consistent with the SBFD Code. Secondly, although there was valid reason for the dismissal of the applicant involving established misconduct, the employer adopted an unreasonable process including the absence of a proper opportunity for the applicant to be heard before the decision to dismiss was made. Thirdly, the implementation of a summary dismissal as opposed to dismissal with notice, was entirely inconsistent with the employer’s genuine contemplation of the severity of the misconduct for which the applicant was dismissed. Fourthly, the particular personal circumstances of the applicant were not properly considered by the employer when it decided to summarily dismiss the applicant.

The FWC awarded the applicant $6,924 in compensation.  

Markovitch v Krav Maga Defence Institute Pty Ltd T/A KMDI [2019] FWC 7365