A case that was recently heard by Fair Work Australia in
Melbourne illustrates FWA's ability, in appropriate cases, to
visit the scene of an incident (which in this case led to the
dismissal) in order to determine the correct facts.
In Chea Uy v MacKay Consolidated Industries, the
Applicant, who had been employed for 25 years, was dismissed for
conduct arising out of an altercation in the company car park. The
Applicant (who had received two previous warnings for aggressive
conduct in the previous four years) had become enraged at the way a
colleague had parked in his (the colleague's) designated space
on the company car park. He therefore took it upon himself to box
him in with his own car so that he would be unable to leave without
the Applicant's permission. It was accepted that his motive was
"to teach him a lesson". The colleague was then subjected
to a tirade for 15-20 minutes before being allowed out of his
The Commissioner took the unusual step of visiting the scene of
the incident to better understand what had happened and to see
whether there was any merit in the Applicant's assertion that
his colleague's car was inconsiderately parked. He was
unconvinced by the Applicant's explanation, stating that the
behaviour "transcends the tedious and, rather, would be
likely to engender fear and concern and to alarm a fellow
The combination of provocative and hostile behaviour, coupled
with the threat to health and safety and restriction of movement
were enough to justify dismissal under s.387 - his 25 years of
service were ultimately of no assistance to him. The Commissioner
applied "a normal standard of what in my view is likely to
be considered acceptable workplace behaviour in the Australian
community". As well as delivering a beautifully worded
decision, he has given us a simple and easily understood "rule
of thumb" test.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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