It's unfair to have 'standards expected of angels' without support, says FWC in unfair dismissal case
The Fair Work Commission (FWC) recently dealt with a case involving an employee who alleged unfair dismissal from his position as a custody officer at a justice complex in Western Australia.
The worker was involved in an incident with a Person in Custody (PIC), during which he head-butted the glass portion of the PIC's cell door. Following an investigation into the worker's behaviour, the employer terminated his employment.
The worker did not deny the head-butting incident or a subsequent comment he made about “wishing” he had head-butted the PIC instead of the door. However, he argued that his termination was unfair, citing factors such as insufficient support from the employer, understaffing, and his admission of the conduct as mitigating factors.
Witnesses and evidence
Julian Rodney-Hansen was employed by Ventia Australia Pty Ltd as a Custody Officer at the Fremantle Justice Complex (FJC) in Perth, Western Australia.
Both parties presented evidence and witnesses to support their positions. The worker and two of his colleagues, Frazer Sturgeon and Grace Bowman, gave evidence on his behalf, while the employer's witnesses included Rebecca Camm (People and Capability Business Partner), Linda Mkulo (Metro Court Group Manager), and Jonathon Snow (Director for Court Security and Custodial Services).
The worker and his colleagues testified about the challenging work environment at the FJC, including understaffing, high turnover of experienced staff, and the need to deal with difficult Persons of Interest (POIs) and PICs.
They also described the events leading up to the head-butting incident and the worker's attempts to de-escalate the situation with the PIC.
The employer's witnesses, on the other hand, provided evidence regarding the appropriate staffing levels at the FJC, the training provided to employees, and the processes followed in investigating and deciding on the outcome of the worker's case. They maintained that the worker's actions were a breach of the employer's Code of Conduct and that the termination was justified.
FWC's consideration and decision
The FWC considered various factors in determining whether the worker's dismissal was unfair, including:
- The validity of the reason for dismissal related to the worker's conduct
- The mitigating factors presented by the worker, such as lack of support, understaffing, and his admission of the conduct
- The nature of the worker's role and the expectations associated with it
- The evidence provided by both parties regarding staffing levels, training, and the events leading up to the incident.
‘Valid reason’ to terminate?
The worker did not contest the two instances of misconduct alleged by the employer. These incidents included head-butting the glass portion of a Person in Custody's (PIC) cell door and making a subsequent comment to a colleague about wishing he had head-butted the PIC instead of the door.
The FWC found that while the comment made to the colleague was ill-advised and a case of the worker venting his frustration, it could not be relied upon to provide a valid reason for termination.
However, the head-butting incident, which escalated the situation with the PIC and created a more serious situation for another Custody Officer to handle, did provide a valid reason for termination.
Notification and procedural fairness
The FWC determined that the worker was advised of the valid reason for his termination through various letters from the employer, which made it clear that their concern was with the head-butting incident and how it breached company policies.
The FWC acknowledged several mitigating circumstances that arose directly from the worker's role at the Fremantle Justice Complex (FJC). These included the worker's interaction with a difficult Person of Interest (POI) on the day of the incident, which likely contributed to his heightened state, and the challenges faced by Custody Officers in dealing with understaffing and inexperienced colleagues.
The FWC also recognized the importance of psychosocial health in the workplace, particularly in environments like the FJC where employees are routinely subjected to abuse and the underlying threat of physical violence from PICs and POIs. The decision emphasized the need for a nuanced view of punishment for employees who break the rules in such challenging circumstances.
"The employees are routinely subjected to abuse from PICs and POIs that could not be tolerated if directed by an employee towards a fellow worker in the [employer]'s or any other workplace. [They] are routinely subjected to comments that would be unlawful if made to a person walking past on the street," the FWC said.
"Further, all of this goes on with, in many instances, the underlying threat of physical violence. While the [employer] has some measures in place via its training programs to provide its employees with tools to deal with the realities of their workplace and to guide them at times when they feel they may be unable to maintain their composure, such tools are imprecise instruments."
"They cannot realistically be otherwise as they are trying to cope with human emotions which are incredibly complex. This is not to suggest that the [employer] does not genuinely wish to equip its employees to deal with the very real issues they face at work, nor is it to suggest that the [employer] has fallen short in its duties," the FWC said.
"What it is to suggest is that it may be unfair to apply the standards expected of angels to mere humans and in keeping with that sentiment, it may be necessary to take a very nuanced view of punishment for those employees who break the rules," it added.
Dismissal found ‘harsh’ and ‘excessive’
Despite the valid reason for termination and the employer's adherence to procedural fairness, the FWC found that the worker's dismissal was harsh in the circumstances.
The gravity of the misconduct, taken together with the mitigating circumstances, led the FWC to conclude that termination of the worker's employment was “an excessive punishment.”
The FWC also acknowledged the worker's lack of prior history of similar behaviour, evidence of stress and frustration due to perceived understaffing, and the fact that he did not commit an assault on a person. It then ordered the employer to pay him compensation.
