A recent decision by the Fair Work Commission has seen an organisation lose out after dismissing an employee involved in a fight.
The Fair Work Commission (FWC) has ruled in favour of two dismissed employees who assaulted their supervisor, due to a failure by the managing director to properly investigate the incident.
An altercation between an employee and his supervisor at Peacock Brothers escalated into a verbal argument, followed by the employee assaulting the supervisor. A second employee then also joined in, with both punching the supervisor in the head.
The fight was eventually defused by a second supervisor, who restrained one of the employees.
The two supervisors then reported the incident to their managing director, Ms Kaplan, who interviewed the employees individually.
The first employee did not provide a detailed account of the incident, and Kaplan dismissed him. The second demanded the right to detail his account of the incident, and stated that the supervisor had also attacked him. He was also dismissed.
Paul Hardman and Ben Keenan of Holding Redlich, after reviewing the case, stated that the decision was reached by the FWC due to Kaplan not carrying out a thorough investigation before dismissing the two employees.
While the FWC saw that dismissing the two employees for their assault was valid, neither were provided a meaningful opportunity to respond to the allegation, with their responses not taken into account by Kaplan before she made her decision.
The FWC also stated that Kaplan did not consider that the two employees had limited proficiency of the English language. Kaplan’s lack of HR training and limited experiencing managing workplace issues was also a factor.
While not reinstated, the two employees were both awarded two weeks’ wages as their dismissals were found to be unjust and unreasonable.
Key HR takeaways
Hardman and Keenan stressed that the incident is a reminder to all employers that proper procedure must be followed when dealing with allegations of misconduct. They recommend the following:
- Obtain written statements from all those involved.
- Allow the employee(s) who the allegations have been made against to respond.
- Do not allow the employee(s) who made the complaint to be present when interviewing the accused.
- Interview any witnesses.
- Offer the assistance of an interpreter to those with language difficulties.
- Consider all evidence before deciding on what action (if any) to take.
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