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 space.
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 employee."
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.
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