Worker sacked after making 'verbal threats' against colleague

Employer claimed it lost trust and confidence in worker given safety role

Worker sacked after making 'verbal threats' against colleague

Aggressive behaviour in the workplace is not acceptable under Australian labour laws.

Such misconduct creates a hostile and intimidating environment and can also lead to legal liability for employers. It can include aggressive language, threats, insults, personal attacks, or physical aggression.

In a recent case, the Fair Work Commission (FWC) dealt with an unfair dismissal claim of a worker who made “verbal threats” against a colleague. In his defence, the worker said the colleague started the fight.

Background of the case

The worker was a drill operator at a coal mine. In September 2022, he was dismissed based on a verbal threat to harm a co-worker during a fight between them in August. 

He claimed the dismissal was unfair and harsh and asked for reinstatement, but the employer said it had lost its “trust and confidence” in the worker “given the safety critical nature of role and requirement to work safely independently.”

The FWC found that the fight was “instigated by the co-worker,” and he only “reacted aggressively” against the co-worker’s conduct.

The worker pointed out the following:

  • “My co-worker had spent the entire time we had spoken calling me names, personally attacking me and being verbally offensive towards me.”
  • “I became angry. I could no longer take his abuse.”
  • “He repeatedly called me a ‘lying cunt,’ ‘a fat cunt,’ ‘a fat lazy cunt’ and also told me to ‘fuck off back to the truck’.”

During the fight, the worker told the co-worker: “If you call me a lying cunt again, I’ll cut your throat.”

In a previous HRD report,  a worker complained “that he was dismissed” due to his “moods being up and down” and because he was “constantly butting heads with the regional manager.”

Was there a valid reason to dismiss him?

The FWC said the employer had a valid reason to dismiss him due to his “aggressive conduct,” saying it was “inappropriate and breached his obligations under codes of conduct applying to his employment and the Work Health and Safety Act 2011 (NSW).”

However, even after a valid ground, the commission found that dismissal was “harsh” considering the worker’s “unblemished 12-year-employment record.”

It also found that his conduct was “uncharacteristic,” and he was “contrite, remorseful and apologised for his conduct.”

The FWC also highlighted that the worker “immediately reported his conduct to his supervisor” and considered the “co-worker’s provocation on the seriousness of the conduct.”

The commission explained that in a dismissal claim, an employee’s act is one of many factors that it considers in its decision.

In this case, it reviewed the worker’s age, family responsibilities, financial circumstances, and employment prospects.

In another case, two workers claimed they were subjected to “unreasonable disciplinary action” following a physical fight.

Was there unfair dismissal?

The FWC said the dismissal was unfair due to “harsh personal and economic consequences; and disproportion to the gravity of the misconduct.”

It noted that the worker “understood his conduct was unacceptable and must not be repeated.” It also said that “the likelihood of further angry behaviour in the workplace was very low.”

“Based on the worker’s history of an otherwise positive working relationships, that level of trust and confidence is sufficient to enable a viable and productive employment relationship,” the FWC said.

Thus, it ordered the worker’s reinstatement to his position and for his continuity of employment to be maintained.

 

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