Australia: Keep your cool - a review of the approach by the Commission to workplace aggression

Last Updated: 4 December 2017
Article by Julie Kneebone and Roland Hassall

As the High Court prepares to examine whether employers need to protect employees from psychological damage caused by investigations into workplace assault, it is timely to examine our employment Commissions' views on when aggressive workplace behaviour justifies dismissal.

Recent case law suggests being involved in a workplace physical or verbal altercation doesn't automatically validate termination. Employers are put to a high standard when investigating and managing aggression in the workplace—so what do the Commissions require employers to do?

Recent cases

In Phillip Coffey v QBar Darwin Pty Ltd [2017] FWC 4312, an employer stopped giving shifts to a casual café supervisor after he was overheard saying his manager "can be a racist b****". In August, the Fair Work Commission (FWC) found that this amounted to unfair dismissal.

The comment was made in circumstances where:

  • the supervisor had complained to his employer that his manager was perpetuating an environment of "cultural exclusion" in the workplace, and
  • the supervisor farewelled his manager, who did not respond.

In response to a complaint about the comment, the employer attempted to resolve the conflict between the manager and supervisor. But, the supervisor refused to participate and told the employer he had spoken to ex-employees and regular customers about the perceived cultural exclusion.

The employer first reduced and then stopped offering the supervisor shifts, before the supervisor began unfair dismissal proceedings.

In deciding the claim, Commissioner Bissett found the supervisor's actions were inappropriate and unprofessional, and warranted reproach and warning, but not dismissal.

In NSW, the Industrial Relations Commission reinstated a ranger who was dismissed following a physical altercation with a member of the public.

During the ranger's employment, the Council received complaints from the public about him. The Council investigated and provided the ranger with warnings and additional training on managing conflict through negotiation, de-escalating aggressive behaviours, conflict resolution strategies and dealing professionally with aggressive behaviour. Despite this, the ranger was involved in a physical altercation involving two assaults while processing abandoned, unregistered vehicles. After investigating the altercation, the Council terminated the ranger for failing to use de-escalation responses and act in accordance with Council procedures.

Commissioner Murphy found the dismissal was:

  • unjust because weight was given to matters such as the ranger's conduct in the lead up to the first assault and his throwing the first punch in the second assault
  • unreasonable because insufficient consideration was given to the ranger's mental state after the first assault, which it considered a significant mitigating factor, and
  • harsh because the penalty of dismissal outweighed the seriousness of the ranger's misconduct.

In Mr Richard Hertaeg v Aviation Training Australasia Pty Ltd T/A Ansett Aviation Training [2017] FWC 4870, the FWC upheld the dismissal of a union member for engaging in aggressive, offensive and disrespectful behaviour toward its Chief Operating Officer (COO).

During a meeting about the renegotiation of an enterprise agreement, the union member made statements aggressively suggesting (with numerous expletives) that the only way to be promoted was to provide sexual favours and that the company was stealing from employees. Employees complained and, after an investigation that found the conduct entirely at odds with the Respectful Conduct in the Workplace policy, a first and final warning was issued.

Later, the union member emailed the COO stating management treats employees "like fools, acting like mercenaries, destroying good will." The employer terminated the union member's employment stating the email constituted a breach of the first and final warning.

Despite finding that the investigation process was inconsistent with the employer's policy, Commissioner Wilson found the employer was "entitled" to believe the employee was not capable of being cautioned about his behaviour or controlling himself.

In Hughes v Momentum Wealth Pty Ltd [2016] FWC 9072, an employee was terminated when he pushed and stood over a hotel patron at a work social club function. In upholding the dismissal, Commissioner Williams:

  • found the conduct was a valid reason for dismissal
  • noted the employee had continued to engage in aggressive conduct by abusing the Managing Director and refusing to leave the venue when asked
  • highlighted that the employee had a prior final warning for head-butting a colleague at an after work gathering, and
  • gave weight to the fact that, at the time the employee was given the final warning, the employee was told any further instances of aggression would result in his dismissal.

In Paul Braughton v Coca-Cola Amatil Limited T/A Coca-Cola Amatil [2017] FWC 2680, the FWC found an employee was validly dismissed after threatening a colleague by stating "let's go to the carpark and sort this out", combined with his behaviour five days earlier when he suggested the same colleague should "bend over a bit more for the company". The employee was notified of both allegations of misconduct in a single show cause letter.

In upholding the decision to dismiss, Commissioner Simpson gave weight to a 2013 warning for arguing with another staff member and anger management counselling provided to the employee by the employer. Accordingly Commissioner Simpson was satisfied there was a valid reason to dismiss because "of the conduct being a repetition of similar earlier conduct despite the existence of an earlier warning and training paid for and provided by" the employer.

Takeaways for employers

When considering appropriate disciplinary action following findings of unacceptable workplace behaviour, employers should consider whether or not:

  • the employee has any prior warnings for similar behaviour
  • the employee has been given training for the particular behaviour
  • the employee was previously warned that a repeat of the misconduct would lead to dismissal, and
  • they have trust and confidence that the employee is capable of controlling their behaviour in future.

The Commission will consider these factors in determining whether dismissal is a proportionate penalty or whether a warning was more appropriate in the seriousness of the circumstances.

I eagerly await a further update once the High Court hands down its decision and expect this to shed further light for employers on how to best protect their company during any such investigation.

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.

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.

Authors
Julie Kneebone
Roland Hassall
 
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”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions