Most Read Contributor in Australia, September 2016
Employers of all sizes must ensure they conduct a genuine
investigation into allegations of serious misconduct before
dismissing an employee, as demonstrated by a recent decision of the
Fair Work Commission involving a fight in the workplace.
In Sheng He v Peacock Brothers & Wilson Lac v Peacock
Brothers (2013) FWC 7541, 2 long-serving employees of a
printing business were summarily dismissed for their involvement in
an altercation with a supervisor earlier that day that had resulted
in both men punching the supervisor in the head.
The Commission heard that the altercation was started by Mr He
when he verbally abused his supervisor, Mr Petrucci, for the manner
in which he had retrieved a roll of printing paper for Mr He. Both
men then entered into a heated argument, during which Mr Petrucci
repeatedly swore at Mr He, as well as pushing him. Mr He then
punched Mr Petrucci in the head. Mr Lac joined the altercation at
this point, also punching Mr Petrucci in the head, before he and Mr
He were restrained by Mr Steenveld, another supervisor who
witnessed the incident.
Mr Petrucci and Mr Steenveld then reported the incident to Ms
Kaplan, Peacock's Joint Managing Director. After speaking with
Peacock's Financial Controller, Ms Kaplan asked Mr He and Mr
Lac to meet with her to discuss the incident. Mr Petrucci and Mr
Steenveld were also present at both meetings.
During the meeting with Mr He, Ms Kaplan recounted the version
of the incident told to her by Mr Petrucci and Mr Steenveld and
asked Mr He for his response. When Mr He had very little to say, Ms
Kaplan informed him that he was summarily dismissed for engaging in
At the meeting with Mr Lac, Mr Lac demanded an opportunity to
tell his account of the incident, which Ms Kaplan allowed him to
do. He complained that Mr Petrucci had been verbally abusive
towards he and Mr He and had swung a punch at Mr Lac. He also
demanded that Ms Kaplan interview other witnesses to the incident
before taking any disciplinary action against him. Notwithstanding
these complaints, Ms Kaplan concluded the meeting by summarily
dismissing Mr Lac for engaging in serious misconduct.
The Commission found as follows in respect of the dismissal of
Mr He and Mr Luc:
There was a valid reason for the dismissals, being the physical
assault of Mr Petrucci, which was not an act of self defence, or a
reasonable reaction to Mr Petrucci's conduct;
Neither employee was provided with a meaningful opportunity to
respond to the allegations against them;
The responses provided by Mr He and Mr Lac were not taken into
account by Ms Kaplan before making the decision to summarily
Ms Kaplan failed to take into account that both employees had
difficulties with the English language, both of whom were of
Vietnamese decent and required the assistance of an interpreter to
give evidence at the hearing; and
Although Peacock employed a total of 97 staff at the time of
the dismissal, Ms Kaplan had no human resources training and
limited experience at managing such workplace issues.
As a result of the significant failings in the investigation
process, the Commission ruled that the dismissals were unjust,
unreasonable and therefore unfair. Accepting that reinstatement was
inappropriate in this case, the Commission awarded each employee 2
weeks' wages, based on the probable period of further
employment Mr He and Mr Lac would have enjoyed, had an adequate
investigation been conducted by Peacock.
Lessons for employers
The manner in which Peacock conducted its investigation into the
incident is a cautionary example to employers of all sizes when
dealing with allegations of misconduct in the workplace.
When conducting a workplace investigation, employers should:
Obtain written statements from all parties involved;
Allow the employee/s against which allegations have been made
an opportunity to respond in some detail;
Do not allow the employee/s who have made a complaint to be
present when interviewing the employee/s against whom the complaint
Interview any witnesses to the incident;
Offer the assistance of an interpreter to employees with
language difficulties; and
Consider all evidence gathered before deciding on the
appropriate disciplinary action to implement.
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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