DP World Sydney Limited v Mr Stephen Lambley [2012] FWAFB 4810

This unusual case concerned an employee who was dismissed for fighting, normally a fairly compelling reason for dismissal, particularly when (a) the fighting is admitted and (b) it is caught on CCTV for all to see.

However, at first instance, it was found that dismissal was "harsh" and accordingly unfair. This finding followed a detailed consideration of the surrounding circumstances which pointed to the fact that the employee, Lambley, had been "set up" by a colleague who intended to engineer his dismissal.

The employer sought leave to appeal against the decision.

The Facts

Lambley was a Stevedore who had been employed for nearly 30 years. In June 2011 he was involved in a fight with another employee, Smith, who had offered to meet him in the car park for a fight. Lambley duly waited in the car park until Smith appeared. He then approached Smith and punched him repeatedly, threw him to the ground and kicked him in the head. He tried to pull Smith to his feet to continue the fight. Smith did not at any stage retaliate. The fight then broke up. It was all captured on film.

The employer argued that dismissal was appropriate because (1) Lambley had clearly beaten Smith (2) he had taken no steps to avoid the altercation and (3) it was a clear breach of its zero tolerance policy on verbal and physical violence. His length of service, the impact dismissal would have on him, his previous good conduct and the probability that he had been goaded into a fight by Smith, were all taken into account.

The Decision at First Instance

The Deputy President said that the deliberate setting up of Lambley by Smith to get him dismissed meant that his dismissal was 'harsh, unreasonable and unjust'. He went as far as to say that the dismissal was such an "utterly flawed and unbalanced response" that it constituted a gross breach of procedural fairness. He ordered that Lambley be reinstated.

The Appeal

The Court firstly had to consider whether it was 'in the public interest' to allow the appeal. It was not enough to consider that it would itself have reached a different conclusion: there must have been a plain error in exercising the discretion from which the appellate Court could infer a failure to exercise the discretion properly.

The gravity of the conduct formed the second limb of the appeal. The employer argued that even if Smith had set Lambley up in front of the cameras, it did not excuse his conduct or prevent it from taking reasonable disciplinary action against him. The unusual circumstances did not outweigh the inherent fairness of dismissing an employee for serious assault after a procedurally fair investigation. A history of bullying and intimidation by Smith did not (it argued) excuse his conduct.

The Appeal Court found that the Deputy President had not approached the matter correctly and his conclusion was "unreasonable and plainly unjust (as) he had not appropriately balanced all the circumstances of the matter nor given due weight to the factors in s.387."

Conclusion

The Appeal Court accepted that it was in the public interest for decisions in unfair dismissal matters to be consistent with established principles and to involve the sound exercise of the discretions vested in the tribunal. Permission to appeal was granted, the appeal allowed and the decision of the Deputy President quashed.

Whilst it is clearly important to investigate all of the surrounding circumstances before taking disciplinary action, this case demonstrates that it will only be in exceptional circumstances that a decision to dismiss will be found to be 'harsh' where a serious assault has occurred.

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