Worker Who Punched Colleague in Face Loses Unfair Dismissal Claim

A car wash attendant has lost her claim for unfair dismissal after the Fair Work Commission (FWC) found she had punched a male colleague in the face for reasons the FWC described as “astonishing and unacceptable”.

What happened

The applicant in the matter (Ms Nakamura) had been working on a student visa at the car wash on the Gold Coast for around two and a half years before her dismissal in July 2020.  The incident itself occurred on 24 June 2020.  The applicant had been speaking with Mr D, her colleague, in an area where employees took their smoke breaks.  An argument erupted between Mr D and the applicant regarding their mutual friend, Ms T, whom Mr D had previously dated.  Ms T had alleged that she had been sexually assaulted the previous day at her workplace by a member of the public.  On Mr D’s telling, the applicant got angry at him for not believing that Ms T was sexually assaulted at work and began yelling at him, before pushing him and then punching him in the face.

A complaint was subsequently made to the employer and an investigation was launched.  The applicant admitted during the investigation that she had struck Mr D and her employment was ultimately terminated as a result.

FWC evidence

The FWC heard bizarre and concerning details of the events leading up to and following the incident.  That included evidence of messages sent by the applicant to Mr D after the incident using SMS and other applications where the applicant implored Mr D to help prevent Ms T from being sexually assaulted by Yakuza gang members.  Mr D blocked the applicant from messaging him, but the applicant used Ms T’s phone to continue to contact him.

The applicant told the FWC that she had not punched Mr D.  Her evidence was that she had a minor and brief argument with Mr D and had pushed him before throwing a punch that did not connect.  The applicant submitted to the FWC that she had no prior history of such incidents and there was no risk to the health and safety of Mr D or any other employees.  The applicant also submitted that the incident was not a workplace incident as it was outside of work hours, outside the workplace, and related to personal intimate relationship matters unrelated to work.

FWC conclusions

Commissioner Hunt of the FWC was satisfied that the applicant had punched Mr D in the face.  The Commissioner said: 

Her reasons for doing so are clear in her evidence and submissions; they are astonishing and unacceptable. Mr D was not responsible for any sexual assault alleged to have occurred to Ms T. He encouraged Ms T and Ms Nakamura to report it to the police. Within 24 hours of the alleged incident, when he cast some doubt on the matter, having heard for a number of weeks prior that this was allegedly happening each Tuesday in the toilets at work by a gang, Ms Nakamura punched him because she was dissatisfied with his response which she considered to be uncaring.

The Commissioner went on to find that the applicant’s conduct was incompatible with her duties as an employee and observed that employees “cannot simply go around striking their colleagues when they are angry with the position taken by the colleague, whether it is a value-based matter or not”.  Commissioner Hunt did not accept the applicant’s submissions that she was provoked by Mr D.  The Commissioner also did not accept the incident was a private, intimate matter between friends, with the applicant having approached Mr D, while he was still working, albeit on his break.

The Commissioner described the messages sent after the incident to Mr D as “disturbing” and “threatening” towards Mr D:

He had already blocked Ms Nakamura from sending him direct messages, but she found a way to do so by using Ms T’s account or phone. The messages are essentially emotional blackmail to force Mr D to intervene in Ms T’s plight, when he had no obligation to do so. Threats of attempts at suicide and the involvement of gangs were, understandably, all too much for Mr D to be involved in. He described it as nothing that he could do, nor anything he wished to be involved in. He contacted the police for advice.

Commissioner Hunt found there was a valid reason for the applicant’s dismissal and the dismissal was procedurally fair. The application was dismissed.

Nakamura v Retail Staff Pty Ltd [2021] FWC 1396