Employer denied worker ever lodged workers compensation claim and said termination unrelated
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who alleged he had been unfairly dismissed from his employment. The worker was employed for approximately 17 years until 30 July 2024.
The worker's employment ended following an incident on 29 July 2024, where he was alleged to have physically assaulted another employee.
The worker contended his dismissal was unfair, claiming he was defending himself against an attempt by the other employee to take money from his pocket.
The employer denied the dismissal was unfair, asserting the worker was dismissed for serious misconduct, supported by witness statements and CCTV footage.
Worker's version of the incident
The worker, who worked at a club, provided two witness statements. In the first, the worker said that on 29 July 2024, during his night shift, one of the other workers put his hand in the pocket on the right side front of the worker's pants and said he needed money.
The worker said he was "weirded out" but explained he did not have any money. Shortly after, another colleague called him to request help to fill out a form.
While helping the colleague, the other worker approached again and tried to put his hand in the same pocket.
The worker said he waved his hand around to tell the other worker not to put his hand into his pocket. The other worker said he wanted to borrow $200.
In the second witness statement, the worker said he made a joke about making more money at the club since the machine was not working.
The worker said that while he showed the other worker photos on his phone of a winning lottery ticket, the other worker stood close and attempted to reach into his pants pocket.
The worker said he felt extremely uncomfortable and moved away. The worker pushed the other worker away by the chest, as he did not want the other worker touching him and wanted to protect his wallet.
Other worker's version of the incident
The other worker was employed as a machine operator. The other worker said that on 29 July 2024 at approximately 9.40pm, the worker approached him and asked if he had any money.
The other worker said he did not have any money and patted his pants down to show this.
The other worker said that the worker showed him a winning payout ticket from a gaming machine.
The other worker said that he jokingly said words to the effect of "you got no money, show me the money" and jokingly reached for the worker's pockets slowly.
The other worker said that the worker said it was easier to make money at the club and that the other worker was stupid for working nonstop.
The other worker said that the worker started swearing at him, so the other worker walked away.
The other worker said that a few minutes later, the worker walked over to the colleague.
The other worker said that he went to see his colleague, and the latter was standing next to him.
The worker said that a supervisor had told the worker that the other worker had complained about the worker kicking the fridge and microwave table in the lunchroom.
When the other worker responded with "yes", the worker suddenly punched him in the chest with his clenched fist.
The colleague who witnessed the incident said that on 29 July 2024 at approximately 9.35pm, he was operating the core machine and there was a problem.
The colleague said that the worker approached him and said, "if you don't know how to fill in the form, I can do it for you."
The colleague said he did not ask the worker to come and help him.
The colleague said that when the other worker came over to help him, the worker swore at the other worker and was complaining to the other worker for reporting him for kicking the fridge, then suddenly, the worker punched the other worker in the chest.
Investigation and disciplinary meeting
The night shift manager said that on 29 July 2024 at approximately 9.45pm, he received a call from another worker advising that he had been punched by the worker in the chest.
The night shift manager went down to the floor to investigate. The assistant general manager said that on 30 July 2024 at around 9.15am he reviewed the CCTV footage of the incident.
As the footage on the CCTV automatically deletes after a few weeks, he decided to record the footage on his mobile phone to preserve it.
The assistant general manager said that on 30 July 2024 at around 8:00pm, he attended a meeting with the worker along with the night shift manager and an interpreter.
The assistant general manager said the interpreter explained to the worker in Vietnamese that this was a serious matter and that if the worker did not understand the interpreter or wanted another support person, like the union, a friend or a family member, he could do so.
The worker then provided a written statement in Vietnamese. The interpreter translated the statement and read it out loud in English.
The assistant general manager said he then told the worker he had reviewed the CCTV footage and had received statements from other employees, and wanted to give the worker another chance to explain his version of events.
The interpreter told the assistant general manager that the worker responded by saying he knew he had received other warnings and knew he would be fired if he hit someone.
The worker said he had shown the other worker a poker machine payout ticket and said the other worker was asking him for $200.
The worker then said he did not hit the other worker but pushed him.
The assistant general manager said he then explained to the worker through the interpreter that touching someone or pushing them was an assault, that it appeared he had punched and assaulted the other worker, that the employer was considering terminating his employment, and the worker would be given 20 minutes to think about this.
Worker's response and termination
The assistant general manager and night shift manager left the room. The interpreter stayed with the worker.
The assistant general manager and night shift manager returned approximately 20 minutes later. The interpreter told them the worker said he had two young boys, he had a home loan and a car loan, and it would be hard to find a job at his age, especially with hearing aids.
He offered to apologise to the other worker, he had been working for 17 years, and he accepted he had made mistakes over the years and asked for one more chance.
The assistant general manager and night shift manager then left the room and went outside to discuss the worker's responses.
After considering the worker's comments, the assistant general manager said he thought the worker's response was unsatisfactory given the serious nature of his conduct, the worker's version was inconsistent with the accounts given by the other worker and colleague as well as the CCTV footage, and he believed the worker had provided some false information.
Valid reason finding made
The FWC examined whether there was a valid reason for the dismissal. The Commissioner stated the employer dismissed the worker because the worker punched the other worker at work.
The worker denied punching the other worker and claimed he pushed the other worker in self-defence because the other worker was trying to take $200.
The Commissioner examined the CCTV footage, which showed the worker raise his right arm as if he was about to punch the other worker, and made a fast motion consistent with a punch, but the point of contact was not visible.
The Commissioner stated: "As the CCTV footage does not show the point where [the worker] makes contact with [the other worker], I must determine whether [the worker] pushed or punched [the other worker] based on the evidence."
The Commissioner stated: "I am therefore not satisfied on the balance of probabilities that [the worker] punched [the other worker]. I accept [the worker's] evidence that he did not use a closed fist, however, based on the CCTV footage, I find that it is more accurate to describe [the worker's] action as hitting [the other worker] with an open hand rather than pushing him."
The Commissioner examined whether the worker was acting in self-defence.
The Commissioner stated: "I have real doubts about whether [the worker] honestly believed that [the other worker] intended to take money from him. However, even if I am wrong about this, there is no evidence to support that there were reasonable grounds for [the worker] to hold this belief."
It was the worker who initiated the discussion about money, and he agreed that the conversation, where the other worker initially gestured towards the worker's pockets, was friendly and jovial.
Procedural deficiencies examined
The Commissioner made findings that the worker approached the other worker and colleague at his initiative and was not invited, the worker initiated a conversation about money and showed a photo of a winning lottery ticket, the other worker jokingly asked for money and gestured towards the worker's pockets but did not touch him, and by the time the other worker resumed his jovial conversation, the worker was angry about the fridge incident and hit the other worker with an open hand.
The worker's assault of the other worker was a valid reason for the dismissal.
The Commissioner examined procedural issues. The Commissioner stated there were multiple issues including the employer's failure to confirm the allegations in writing prior to the meeting, the employer's failure to advise the worker prior to the meeting that dismissal was a possible outcome, the employer's decision to nominate a support person for the worker in circumstances where it was aware the worker was a union member, the employer's use of a Vietnamese speaking employee rather than an accredited interpreter, and the employer's failure to provide the CCTV footage to the worker.
The Commissioner stated: "If the allegations had been confirmed in writing by [the employer], [the worker] could have prepared for the meeting, including getting advice if necessary and organising a support person of his choosing."
The employer should have also advised the worker in writing that there was a possibility he would be dismissed at the meeting.
The Commissioner stated: "When the employment of a long-term employee who has limited English language skills is at risk, that employee should not be disadvantaged because of this."
However, ultimately, it appeared the worker was not disadvantaged by the colleague providing interpreting services.
Worker's dismissal not unfair
The Commissioner stated: "I have found that there were a number of serious procedural deficiencies in the conduct of the disciplinary procedure and the execution of the dismissal. Most of these matters weigh in favour of a finding that the dismissal was unfair.
However, ultimately I do not think that the absence of these procedural deficiencies would have produced a different outcome."
The worker raised a number of mitigating factors and after considering these matters, the employer decided to dismiss him.
The worker was represented throughout the proceedings and had the opportunity to present any evidence that explained why he hit the other worker.
The Commissioner stated: "In my view, if [the assistant general manager and night shift manager] were aware on 30 July 2025 of all of the matters referred to in [the worker's] evidence to the Commission, this would not have led to a different outcome."
The Commissioner stated: "Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of [the worker] was not harsh, unjust and unreasonable because there was a valid reason for the dismissal related to [the worker's] conduct, [the worker's] conduct was serious, [the worker] was notified of that valid reason, and the procedural deficiencies I have identified would not have changed the outcome."
The application was dismissed.
