FWC case challenges zero-tolerance policies for physical incidents at work
The Fair Work Commission (FWC) recently dealt with a case involving a worker who was dismissed following a physical altercation with a colleague. The worker argued he was acting in self-defence after being attacked from behind while travelling in a vehicle.
He claimed the employer failed to properly consider his account of events and that his dismissal was therefore harsh, unjust, and unreasonable.
The employer maintained that the worker's participation in a physical confrontation violated company policies, particularly their code of conduct and charter values. They also argued that the worker's refusal to accept responsibility for his actions undermined trust and confidence in the employment relationship, making dismissal an appropriate response.
This case raises important questions about how workplace altercations should be handled by employers, particularly when claims of self-defence are involved.
The incident occurred on 13 June 2024 at a coal mine where the worker was employed. While travelling in a Toyota Hilux on a haul road after 10:30 pm, the worker made a comment about his dozer "being sick of cleaning up after" his colleague's dozer.
According to evidence accepted by the FWC, this comment led to a verbal argument that escalated when the other employee leaned forward from the back seat and grabbed the worker from behind. Mr Torcello caused injuries to the worker's face and bit the worker's thumb when he reached across his body to struggle with his attacker. The driver eventually stopped the vehicle, and the confrontation continued outside.
The worker provided photographic evidence of his injuries, including abrasions on his lip and ear, injuries to his thumb, and bruising on his chest. Deputy President Lacy found this evidence was consistent with the worker's account of events.
The employer dismissed the worker on 20 September 2024, providing five weeks' pay in lieu of notice. The dismissal letter stated the worker had engaged in a "physical altercation that started in a light vehicle then continued outside of the vehicle" and that during this altercation, he had "punched the other [employee] multiple times."
The FWC rejected the employer's position, with Deputy President Lacy finding: "The co-worker attacked [the worker], and [the latter] defended himself. [The worker] had an objectively reasonable basis to consider that he needed to defend himself. The actions he took were proportionate and reasonable having regard to the events and the conditions on the haul road at the time."
The Commission applied the test for self-defence that includes "both a subjective and an objective element... The subjective element concerns the belief that the conduct was necessary in the circumstances. The objective element goes to whether there were reasonable grounds for the belief."
The Commission found significant issues with the employer's investigation. The investigating manager appeared not to have maintained an open mind about the possibility the worker had acted in self-defence.
During cross-examination, the investigating manager suggested workers should "remove yourself, wherever you could" and stated that "it may mean that yeah you might have to get punched unfortunately, but you can definitely, there are definitely other ways." When asked if people should "cop a punch for the sake of not being disrespectful," he responded, "for the sake of not escalating something, yeah."
The Commission determined these statements showed "a very rigid and narrow view about whether self-defence could ever be available as a justification in circumstances where a person had hit someone," undermining the worker's opportunity to properly respond to allegations.
The Commission emphasised there is no automatic rule that workplace fighting justifies dismissal. It referenced precedent stating: "In determining whether a dismissal was harsh, unjust or unreasonable the Act directs the Commission to take into account the matters in ss.387(a)–(h). It is not for the Commission to impose an arbitrary limitation not expressed in the Act."
Despite the altercation, the worker's colleagues spoke positively about his work performance. The driver stated he "had a good working relationship with [the worker]." The former said "[the worker] was really good at his job" and that he "got along well with [the worker]." Even the investigating manager acknowledged that the worker was "excellent" and "a valuable part of the crew."
Having determined the dismissal was unfair, the Commission ordered reinstatement rather than compensation. Deputy President Lacy concluded: "I cannot be satisfied that reinstatement was inappropriate. There was no evidence of any adverse disciplinary history."
The Commission found the dismissal was "harsh in light of the circumstances of the altercation and the lack of any adverse disciplinary history. It was unjust because [the worker] was entitled to defend himself rather than allow a co-worker to attack him, and his acts were proportionate and reasonable in the circumstances."
This case highlights the importance of thorough investigations when workplace altercations occur, particularly when self-defence claims are made.
