When does protecting your workspace cross the line into serious misconduct?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a vehicle recovery officer who was terminated following a physical altercation with a tow truck driver while attending to a roadside assistance call.
The worker claimed his actions were justified to maintain safety at his worksite. He argued that he had a duty of care to prevent the tow truck driver from approaching a potentially dangerous vehicle, and that he would have been "criminally negligent" if he had allowed the driver to access the area he had secured.
Throughout the proceedings, the worker maintained he was the victim in the situation, that he had acted appropriately given the circumstances, and that his employer had unfairly terminated him for doing what he believed was right.
The incident occurred in September 2024 when the worker, employed as a vehicle recovery officer since March 2023, was called to assist with what was reported as a flat tyre. He began securing the area with cones and attaching the vehicle to his recovery truck when tow truck operators arrived at the scene.
One tow truck driver claimed the vehicle had been in an accident and was therefore "off limits" to the worker's employer. This was significant because under Queensland regulations, the employer was only authorised to tow vehicles that had broken down, not those involved in accidents, as they were not licensed to conduct "regulated towing" within the meaning of the Tow Truck Act 2023 (Queensland).
The situation escalated during a call the worker made to dispatch. Camera footage showed the worker placing "his right hand in the centre of the tow truck driver's chest, then uses both hands to push the tow truck driver back." This triggered a full altercation where the tow truck driver began "shoving the [worker] and grasping at his face and at the collar of his shirt." The worker then "kicks the tow truck driver's legs out from under him" causing both to fall onto a concrete footpath, after which the worker was punched multiple times.
The worker, who had previously worked for the Queensland Police Service as an operational skills instructor, insisted his actions were to protect safety at his worksite. He wrote in his response:
"The overwhelming and most vital reason that I directed the tow truck driver away from the vehicle was my immediate concern for his safety. It is possible that the vehicle suspension could have collapsed at any time."
He maintained that he would be "criminally negligent" if he had allowed the tow truck driver to approach the vehicle, which he believed was unstable and could collapse at any moment.
The employer pointed out that the worker had completed conflict management training in March 2023 that specifically instructed: "If at any time the confrontation appears to be escalating to the point where a physical altercation may occur and/or your personal safety is compromised, quickly and calmly retreat to your vehicle and drive away to safety."
Instead of retreating as per his training, the employer argued the worker took "an authoritative approach" by telling the tow truck driver to "get back" and positioning himself between the driver and the vehicle before initiating physical contact.
The FWC found that the worker's behaviour "escalated the situation and was contrary to his training." The Commission noted he had options other than physical contact:
"It was perfectly open to [the worker] to explain to the tow truck driver, using his words, that the vehicle may have a broken ball joint and that touching the vehicle could be dangerous. Instead, [the worker] simply issued 'directions' to the tow truck driver to move away and then pushed him."
The FWC rejected the worker's claim that being punched was not a foreseeable outcome of pushing the tow truck driver. The Commission noted that the tow truck driver had warned: "Don't be talking to me like that, you put your hand on me and we will walk to the corner right now."
The FWC determined the worker's actions constituted serious misconduct under the Fair Work Regulations 2009: "[The worker] pushed the tow truck driver which is, by his own admission, assault. [The worker] put his own health and safety at risk as well as the health and safety of the tow truck driver. [The worker] also engaged in conduct which would cause a serious and imminent risk to [the employer's] reputation."
The Commission also found troubling the worker's lack of insight during the disciplinary process. When questioned during the hearing, he maintained he would act the same way again if faced with a similar situation.
The FWC noted: "[The worker] shows no capacity to accept any wrongdoing. When asked on multiple occasions, including under oath, he has stated that he would do the same thing all again."
The FWC also identified inconsistencies in the worker's statements: "It is puzzling why [the worker] would continue to parse and deny facts which are objectively observable when viewing the footage and listening to the audio of his phone call."
In dismissing the unfair dismissal application, the FWC concluded: "[The worker's] dismissal was not harsh, unjust or unreasonable. [The worker] committed serious misconduct at work. [The worker] was given several opportunities to respond to the accusations against him. [The worker] was dishonest in the course of the disciplinary process and, even now, he shows little insight into his behaviour."
This case highlights the importance of following workplace safety procedures and de-escalation training. It also underscores that even when workers believe they are acting to protect safety, they must do so in accordance with their training and employer policies.
