Denial is not just a river in Egypt

In a recent decision of the Fair Work Commission, a worker’s fanciful denials of any wrongdoings were rejected and the worker’s termination for having threatened to hit female colleagues and acting aggressively towards an HR manager was justified. The conduct of the worker, his denial in the face of overwhelming evidence, along with the flimsy arguments put forward in pursuing his claim, and the ensuing waste of the Commission's time having to arbitrate, places this case at the low-water mark for behaviour in the workplace. 
However, what this decision does reiterate is that even if a worker’s conduct provides a clear reason for termination of employment, employers must nevertheless apply appropriate processes when making that decision. Workers will attempt to use the smallest of procedural errors by their employer as the basis for their unfair dismissal claim. The ability of the employer to evidence the application of fair process will keep the balance in the employer’s favour and minimise the prospects of a worker being successful if they make such a speculative claim. Failure to do so can bring an otherwise justifiable termination undone.
The conduct
The evidence established the pattern maker for fashion designer Alex Perry became aggressive and made threats of physical violence when questioned over work related issues. Incidents included yelling at a 65-year-old colleague that he would "f**k you up the arse" after she made a comment about his workmanship, threatening to hit and "f**king slap" two female colleagues, and becoming aggressive towards the HR manager, telling her she was "nothing" when being warned over performance issues. 
The employer told the Commission the employee's behaviour created a serious and imminent risk to other workers' health and safety.
The denial
During the hearing, the employee denied outright having engaged in the alleged conduct and argued that swearing was common in the workplace. The employee claimed to never swear at work because swearing wasn't in his nature. 
Additionally, the employee claimed to never have received any previous warnings for his alleged behaviour and that the first he had heard about any warning was after his dismissal. He also claimed his dismissal meeting only lasted five minutes, and he wasn't offered a support person or an opportunity to respond to the allegations.
The decision
Deputy President Sams held the employee's dismissal was appropriate in the circumstances given the employer's duty to protect workers' health and safety. To do otherwise was not only contrary to law, but is inimical to a harmonious, respectful and productive workplace.
His Honour said it was difficult to understand why the employee relied on a claim that workplace swearing was common when he claims to have never sworn himself. His Honour continued stating "This defence is usually advanced when an employee admits to swearing, but claims it is a normal and commonplace occurrence for employees to swear at work. This is not the applicant’s position at all. In any event, it hardly needs to be said that swearing in ordinary conversation might be tolerated in some workplaces… it is an entirely different proposition where swearing, and grossly offensive language is directed at a particular person or group of persons in an aggressive, threatening or intimidatory fashion."
His Honour found the employee engaged in serious misconduct and there was a valid reason for his dismissal. He also rejected the employee's procedural unfairness claims, saying it was "little wonder" his case focused almost entirely on "a few insignificant procedural points", given the overwhelming witness evidence against him and his "fanciful and untruthful denials of any wrongdoing". In dismissing the claim his Honour said the employee's union representative was left to "defend the indefensible".
The takeaway
While the reason for termination must be sound and defensible, the Fair Work Act contains a range of issues that the Commission must consider when arbitrating a worker’s claim of having been unfairly dismissed. These legislative considerations include a range of factors such as notifying the employee of their alleged conduct and reason for dismissal, having given an employee an opportunity to respond to the allegations, and whether previous warnings for similar conduct had been given. Establishing these factors and the fairness of the process will always fall on the shoulders of the employer.
Having to terminate a worker is an anxiety inducing event, but it is an occasional reality of owning and or running a business. Take a considered and step by step approach to the matter. Seek support and guidance for an objective consideration if you require, and before you carry out the termination. Moving in haste and without having covered all relevant aspects will significantly increase the likelihood of an employee being successful because of employer oversight.
Charles Watson, LLB GIA(Cert)
general manager, Human Resources
Workforce Guardian


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