It's widely accepted that physical violence in the workplace is not tolerated, especially in high risk environments like mine sites where such conduct can be particularly dangerous. In many cases fighting in the workplace leads to dismissal. However, in a recent decision, the Fair Work Commission (the Commission) has ordered that a mine worker be reinstated to his position after he was dismissed for fighting with a co-worker. The case illustrates that there is no presumption that fighting in the workplace will automatically mean that a dismissal is fair, and that regard must be given to all the circumstances in which the fight occurred.
Background
In David Wuele v Central Queensland Services Pty Ltd, the Commission was required to make findings in relation to an altercation between two employees, Mr Wuele and Mr Torcello. The two men were travelling in a dual cab ute being driven by a third person. Mr Wuele was sitting in the passenger seat and Mr Torcello was sitting behind him. Mr Wuele made a comment to Mr Torcello to the effect "I think my dozer is sick of cleaning up after your dozer". The comment was passive-aggressive, leading to a verbal argument followed by Mr Torcello leaning forward and grabbing Mr Wuele in a headlock. Mr Torcello caused some minor injuries to Mr Wuele's face and bit his thumb. The pair struggled before the driver pulled over. The altercation continued outside the ute where Mr Wuele punched Mr Torcello twice. The day after the incident, Mr Torcello resigned from his employment, and Mr Wuele was dismissed following an investigation.
When considering whether there was a valid reason for dismissing Mr Wuele, the Commission turned its mind to previous decisions of the Commission and other bodies which advanced the position that regard must be given to all of the circumstances in which the fight occurred including, but not limited to, whether the terminated employee was provoked and whether he or she was acting in self-defence.
Despite the genesis of the fight being Mr Wuele's passive-aggressive comment, the Commission found that it was Mr Torcello who attacked Mr Wuele who then defended himself. The Commission said that Mr Wuele had an objectively reasonable basis to consider that he needed to defend himself. Further, the action taken by Mr Wuele was proportionate and reasonable. For those reasons, the Commission decided there was no valid reason for the dismissal.
The Commission was also highly critical of the investigation into the incident and, more precisely, the conduct of the investigator. It found that the investigator had a very rigid and narrow view about whether self-defence could ever be available as a justification in circumstance where a person had hit someone. The investigator formed an unshakable view immediately following the altercation. The Commission also highlighted that the investigator kept poor notes, which was consistent with the investigator "going through the motions" rather than keeping an open mind. In view of those failings with the investigation, the Commission said that, even though Mr Wuele was ostensibly given an opportunity to respond to the allegations against him, it was not a proper opportunity at all.
The Commission's decision was delivered about 11 months after the altercation, and about nine months after Mr Wuele's dismissal. Irrespective of the significant passage of time, the Commission ordered that Mr Wuele be reinstated to his position and also made an order to restore lost pay. This is a surprising outcome, as statistically orders for reinstatement are rare. On this occasion the Commission considered that reinstatement was appropriate on the basis of evidence that Mr Wuele was an experienced worker with no disciplinary history.
Key lessons
The decision highlights that employers must consider all relevant circumstances when determining whether there is a valid reason to dismiss someone, even if the reason is based on conduct which is ordinarily linked to misconduct warranting dismissal. Further, investigators must be careful to avoid "going through the motions" and forming preliminary views, because that will not satisfy the requirement to provide a real opportunity to an employee to respond to any proposed reason for dismissal.
The case is also a useful reminder that reinstatement is the primary remedy that the Commission must consider if an unfair dismissal claim is successful, and employers need to bear that risk in mind when dealing with claims involving dismissal. That includes the prospect of ancillary orders for continuity of employment and lost pay.
Mr Wuele's employer is appealing the decision to the Full Bench of the Commission. Watch this space.
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