The Fair Work Commission (FWC) has rejected a claim for unfair dismissal despite criticizing the employer’s dismissal process as “bereft of procedural fairness”.
The applicant, Mr Battle, was dismissed on 2 September 2020 after his employer, Macleay Options, formed the view that he had sworn at, threatened, and behaved aggressively towards colleagues. The applicant argued his dismissal was unfair because he was not afforded procedural fairness and he did not behave in the manner his employer alleged.
The FWC heard conflicting evidence relating to the applicant’s conduct but Deputy President Saunders of the FWC ultimately determined that the applicant had asked a supported employee on the morning of 2 September 2020, “Where were you, you lazy c…?” The Deputy President accepted that the conduct left the employee feeling threatened, picked on and uneasy working with the applicant. In an incident which occurred later on the same day, the Deputy President found that the applicant and another colleague had proceeded to get in each other’s faces with the applicant removing his shirt and saying words to the effect of “let’s have a go” before referring to nearby colleagues as smart arses, c….s, and dogs. The Deputy President also found the applicant had picked up a chair and thrown it and done the same with a leaf blower. A supervisor intervened and led the applicant away from the area. A short time later, the applicant punched a downpipe. The applicant was subsequently driven home by another employee.
Poor process but dismissal not unfair
The company’s HR Manager attended the site on the same day and interviewed witnesses. The HR Manager then spoke to the CEO and it was decided that the applicant should be dismissed. The HR Manager attempted to phone the applicant but he did not answer. The HR Manager then sent a text message to the applicant to notify him of the dismissal. The FWC described the process used to dismiss the applicant as “rushed and inept”. The failure to provide the applicant with an opportunity to respond to the allegations against him was “unreasonable” according to the Deputy President. But, having found that the applicant did commit much of the conduct alleged and that the conduct justified the decision to dismiss the applicant, the Deputy President determined that the procedural deficiencies would not have made any difference to the ultimate outcome.