Employee contests firing, claiming defensive actions during heated exchange with colleagues
The Fair Work Commission (FWC) heard an unfair dismissal application from a machine fitter who was summarily terminated following his involvement in a workplace confrontation and allegations of using racially offensive language.
The worker contested the dismissal, arguing he acted defensively during the incident and that the language he used was culturally contextual and misunderstood by colleagues.
The employer dismissed the worker in May 2025 after an altercation with two colleagues that included physical contact and verbal exchanges captured on security cameras.
The employer alleged the worker had repeatedly used racially offensive language in the workplace, physically escalated the confrontation, and failed to cooperate with the investigation process.
FWC reviews security camera footage of workplace confrontation
The Commission examined security camera footage from multiple cameras capturing an incident on 8 May 2025 involving the worker and two colleagues in a workshop area.
The FWC found the footage showed one colleague calling out a word while inside a workshop office, which another colleague overheard and asked him to stop using, stating he did not want to hear that word in his presence.
The Commission noted the footage showed a verbal disagreement developed between the three employees with escalating tone, and observed the worker pushed one colleague once, then, after a brief exchange of words, another push appeared on camera.
The Commission found the group briefly disbande,d then moved to a driveway area where an external transport worker physically intervened to separate the parties.
The FWC determined the footage showed the worker moving toward a colleague in close proximity, engaging in verbal exchange and brief physical contact.
It found the worker's response did not materially de-escalate the situation and contributed to a safety risk in a production environment, specifically rejecting the worker's characterisation that his actions were defensive.
Commission examines disputed allegations regarding workplace language
The Commission heard evidence regarding allegations that the worker had repeatedly used a term he stated was a Persian greeting, which other employees understood phonetically as a racial slur.
The Commission noted the employer's allegations stated the worker used this word frequently and that it was spoken loudly enough for surrounding co-workers to hear, despite the worker maintaining it was a private conversation with one specific colleague.
The FWC found the employer also alleged the worker had used specific, racially offensive terms during exchanges with colleagues.
The Commission noted the worker's position was that any such words were private, culturally contextual, or misheard, and that he viewed certain terms as non-offensive due to linguistic pronunciation similarities in different languages.
The Commission determined that witness accounts and meeting acknowledgments supported the employer's allegations regarding language use.
The Commission found that in a workplace, the reasonable effect on colleagues and safety culture is significant, and attempting to recast language as banter or linguistic misunderstanding does not neutralise the impact on workplace culture.
Employer's investigation procedures and response opportunities
The FWC heard the employer issued show cause notices on 12 May and 16 May 2025, setting out allegations and inviting written responses by 20 May 2025, while placing the worker on paid stand-down to separate employees and progress the investigation.
The Commission noted a clerical error in one reminder that misstated the response date as 21 May, but the error was corrected the same day to the original deadline.
The FWC found the worker was invited to respond in writing by 20 May 2025, to nominate a representative, or to provide a medical certificate expressly stating he was unfit to engage in written communication from home.
The Commission determined the worker did not lodge such a certificate nor authorise a representative by the deadline, with the medical certificate provided only stating he had no current capacity for any work.
The Commission concluded there was a real opportunity to respond before the dismissal decision and that the worker was not denied the chance to have a support person present.
The FWC treated the misstated reminder date as a minor administrative error without substantive prejudice to the worker's ability to respond.
FWC questions employer about certain grounds listed in termination
The FWC noted during the hearing that it questioned the employer about three of the six grounds listed in the termination letter, indicating they appeared weak in substance or foundation.
The Commission heard the employer acknowledge the wording of some grounds might not align precisely with the employment contract, but maintained the strongest points were the use of racially improper language, escalation of conflict, and dishonesty during the investigation.
The case found the employer had valid reasons for dismissal, which comprised the on-site altercation and escalation, and the use of racially offensive language.
The Commission determined these matters viewed together constitute valid reasons that relate to conduct and to the safety and welfare of employees in the workplace.
The FWC determined it was not necessary for additional reasons beyond the altercation and offensive language to be found to establish valid reasons for dismissal.
The Commission found the worker's conduct, objectively assessed on the record, including security camera footage, was incompatible with safe work and workplace standards.
FWC weighs procedural fairness and proportionality factors
The Commission found the worker was notified in explicit terms of the allegations to be answered through the show cause notices and termination letter, which identified the reasons relied upon for dismissal.
It determined the employer documented the process, provided reasons, and afforded an opportunity to respond appropriate for a medium-sized enterprise with human resources capacity.
The FWC considered the worker's submission that summary dismissal was disproportionate and that his two years of employment without previous warnings should be considered.
It also found the dismissal could not be seen as disproportionate, determining the worker's conduct constituted a material breach of employment terms and conditions and the employer's policies and procedures.
It concluded the employer's actions were a reasonable and just response to the conduct and were proportionate to the seriousness of the behavior.
The FWC found it could not apply significant weight to the worker's employment history, given the gravity of the conduct, ultimately finding the dismissal was not harsh, unjust or unreasonable and dismissing the application.
