DP World Sydney Limited v Mr Stephen Lambley  FWAFB
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.
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 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."
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
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.
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.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).