Summary dismissal upheld for employee who struck a colleague at a bar
A building maintenance officer who delivered a "classic pub punch" to a colleague at a Melbourne bar in December 2024 has failed in his unfair dismissal case after the Fair Work Commission ruled that his action constituted serious misconduct despite happening offsite and after hours.
FWC Commissioner Perica said in the decision that the employer, Arts Centre Melbourne (ACM), was justified in summarily dismissing the building maintenance officer after it determined that it had valid reason to do so.
'A classic pub punch'
The applicant had worked at ACM since January 2020. On 9 December 2024, he attended the organisation's Christmas party before walking with colleagues to Beer DeLuxe, a bar roughly 200 metres from the venue. It was there he encountered a colleague, ACM's Head of Venue Planning, who he met for the first time.
The two men fell into conversation in the bar's smoking area. The applicant used the expression "that's gay," which his colleague, who is gay, found offensive. The colleague responded angrily, raising his voice.
As the applicant attempted to leave, a confrontation ensued. He struck his colleague to the head with sufficient force to knock him backwards into a gas heater and onto the ground, before leaving the scene.
The blow was witnessed by a senior ACM manager, who described it in his witness statement as "a sloppy big right-hand punch" and "a classic pub punch."
In his own interview with ACM investigators, the applicant said: "I was drunk, I understand that. And I reacted, just way too quickly to that."
"He fell back like three or four metres... I shoved him hard, man. I swear. Oh, I didn't mean to, but I just was enraged," he added.
ACM launched an investigation the following day. The applicant was suspended on pay before being summarily dismissed on 19 December 2024. He filed an unfair dismissal application on 9 January 2025.
Unfair dismissal claim rejected
Central to the applicant's case was the argument that because the incident occurred off-site and outside work hours, ACM had no right to regulate his conduct. He also argued he had acted in self-defence and that ACM bore partial responsibility by failing to manage alcohol service at the Christmas party.
Commissioner Perica rejected each argument. On the connection to employment, he found that both men were present at Beer DeLuxe solely because of the ACM Christmas party, the venue was a short walk from ACM's premises, and around 20 ACM employees were present.
The assault's aftermath also continued to affect the workplace. The colleague told the Commission he was "afraid to work alone" and was unsettled by the fact the applicant, as a facilities employee, held keys to his office.
"The ongoing consequences of the assault connected the out of hours conduct to the workplace and had serious effects on the capacity of ACM to continue to employ [the applicant]," Perica wrote.
The applicant's self-defence claim also failed. Even accepting the colleague had been verbally aggressive, the Commissioner held that "countering aggressive words and close physical proximity with a blow is not necessary, proportional or reasonable."
The Commissioner also found the applicant's credibility wanting. He had failed to disclose during ACM's investigation that he had used the expression "that's gay," the remark that had triggered his colleague's response. He initially claimed he could not remember making it, before conceding in cross-examination that part of the reason he stayed silent was because he knew "it would make him look bad."
The Commissioner found his explanation for the omission "not credible." He also noted the applicant's description of the blow had weakened over time, finding his earliest account, given to investigators while events were fresh, the most reliable.
"Given the seriousness of the act of striking, and the impact it had on [the colleague] in the days that followed, summary dismissal was an entirely proportional penalty," he wrote.
