Find out why the FWC ruled a dismissal unfair despite altercation at work
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who was summarily dismissed following a physical altercation with a colleague at work.
The worker argued that the dismissal was unfair because he had acted in self-defence during the incident, claiming his colleague had been aggressive and threatening toward him.
He further contended that his employer failed to provide proper procedural fairness by not giving him adequate time to respond to allegations and by not meeting contractual obligations regarding travel arrangements.
The case raised important questions about workplace disciplinary procedures and the circumstances in which physical confrontations between employees might be considered with mitigating factors, even when company policies explicitly prohibit fighting.
The incident occurred on 18 September 2024 at Wiluna Mine in Leonora, Western Australia. The worker had been employed as a full-time operator since March 2023, working on a fly-in-fly-out basis while living in Queensland.
The confrontation began when the worker observed a colleague driving into a parking area at what he believed was excessive speed, creating dust. After approaching his colleague about the issue, a heated exchange followed.
The worker claimed he tried to de-escalate by counting to three while backing away, but ultimately punched his colleague when he believed the colleague was about to strike him. He then placed the colleague in what was described as a "chokehold" for approximately twenty seconds.
The incident was partially captured on a truck's front-mounted camera, though the footage was of poor quality and only 109 seconds long. The worker was subsequently stood down without pay before being summarily dismissed for serious misconduct on 25 September 2024.
Following the incident, the employer emailed a show cause letter on 23 September (a public holiday in Western Australia) requiring a response by the following day. When the worker requested an extension to seek legal advice, his request was denied.
The worker was instructed to fly from the mine site to Perth and then make his own way home to Queensland. After missing his initial flight, he was driven nine hours to Perth airport and had to book his own flights to Brisbane via Melbourne at his own expense, despite his employment contract stating the employer would cover flight costs.
The FWC found the dismissal process was flawed: "The time given for response was very short. The time was curtailed because [the worker] spent time going on a long car trip, and trying to make alternative travel arrangements, over the course of those two days... it was not reasonable for [the manager] to refuse the extension."
The FWC accepted that there was a valid reason for the dismissal related to the worker's conduct. After hearing from multiple witnesses and reviewing the available footage, the Commissioner determined:
"The punch was, from [the worker's] perspective, an act of self-defence. The chokehold or sleeper hold was rational for the reasons stated above... But the length of the chokehold or sleeper hold made it excessive, giving rise to a valid reason in relation to conduct, arising from the altercation."
The FWC found all witnesses to be truthful in recounting their recollections, though their accounts differed. The worker was in his sixties, decades older than his colleague, who appeared taller in the video footage.
The employer's employment contract explicitly stated that fighting was unacceptable conduct, which was not disputed by either party. The worker had no history of violence or misconduct during his employment.
Despite finding a valid reason existed, the FWC ultimately determined the dismissal was harsh, unjust, and unreasonable when considering all factors under section 387 of the Fair Work Act.
"Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of [the worker] was harsh, unjust, and unreasonable, having regard to the facts of the altercation, the deficiencies as to the opportunity to respond, [the worker's] otherwise clean record, the failure to meet [the employer's] obligations as to travel in the intervening period between the show cause and the termination, and the summary nature of the dismissal," the Commissioner stated.
The FWC awarded $2,890.08 in compensation rather than reinstatement. This amount was based on one additional week of employment the worker would likely have had if proper procedures were followed, at his rate of $50 per hour for 72 hours.
The calculation included a 10% reduction for the worker's failure to mitigate his loss and a further 20% reduction to account for his misconduct.
The Commissioner noted: "In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is a further 20%."
This case demonstrates that even when there is a valid reason for dismissal based on employee misconduct, employers must still follow fair procedures throughout the disciplinary process.
