Fair Work Commission finds dismissal was disproportionate to gravity of an employee’s heat of moment remark

In the unfair dismissal jurisdiction, the primary remedy is reinstatement. This means the employer is ordered to return the employee to their employment in the position they held immediately prior to their dismissal or another position on no less favourable terms.

The Fair Work Commission (FWC) will have regard to a number of circumstances when considering whether to reinstate an employee, such as whether there has been a loss of trust and confidence in the employment relationship which would make reinstatement inappropriate.

In the recent decision of Whitfield v Primo Foods Pty Ltd [2021] FWC 2729, the FWC was tasked with determining whether a breakdown of trust and confidence in the employment relationship was sufficient to conclude that the reinstatement of the employee was impractical.

The employee was as a Meat Process Worker for Primo Foods Pty Ltd (the Employer).

As part of her role, the employee was required to take piles of bacon from the top conveyer belt, transfer it to her workstation, weigh it and then move it to the lower conveyer belt.

In or about July 2020, the employee was working on this task with one of her colleagues when she noticed that one of the scales had stopped working. She left her workstation to collect a replacement scale, leaving her colleague to undertake the task by herself.

As the employee was replacing the scale, a piece of bacon had fallen to the floor and her colleague proceeded to yell at her to pick it up. The employee responded by telling her colleague to “shut up” and signalled for the supervisor so she could complain.

When speaking to the supervisor, the employee told him that she “felt like knocking her [colleague] off her perch”.

Shortly after the altercation, the employee was directed to attend a meeting with the HR Manager where she was required to give a statement about the incident. The employee was issued with a letter to show cause as to why her employment should not be terminated on the grounds that she had threatened one of her colleagues.

The employee responded by stating that she was only venting to the supervisor about how she was feeling and did not intend to threaten anyone at work.

The Employer found that the allegations were substantiated and terminated the employee on the grounds that it would not tolerate threatening and hostile behaviour towards others in the workplace and that this sort of behaviour constituted serious misconduct.

The employee subsequently lodged an application before the FWC alleging that she had been unfairly dismissed and sought reinstatement as a remedy. The employee maintained that the words she used were not to convey any threat, rather she was venting her frustrations figuratively.

The FWC considered that the events leading up to the incident were relevant to the factual matrix of the matter. The FWC stated that the busy bacon line and the Employer’s failure to provide adequate equipment in dealing with bacon overflow caused significant stress to the employee and her colleague. The FWC considered these circumstances to be relevant as to why the events unfolded the way they did.

Turning then to whether the employee engaged in serious misconduct by threatening to hit her colleague, the FWC considered the employee’s evidence that she was expressing her frustration to her supervisor to be consistent and reliable.

The FWC went on to note that to knock someone off their perch was a colloquial phrase, referring to causing someone to lose their sense of superiority or authority over others. The FWC did not find it reasonable in the circumstances to interpret such a phrase as the employee intending to hit, or threatening to hit, her colleague.

Accordingly, the FWC held that the words used by the employee may be considered misconduct, but they were not a valid reason for summary dismissal.

In addition to a finding that there was no valid reason for dismissal, the FWC found that the employee had not been adequately notified of the reasons of her dismissal and she was not given an opportunity to respond to the allegations as to her conduct.

In having regard to the above, the FWC held that the dismissal was disproportionate to the gravity of the actual conduct and the procedure used to conclude the dismissal was deficient. Therefore, the FWC concluded that the dismissal was unfair.

Turning then to the remedy, the FWC noted that a loss of trust and confidence may make reinstatement impractical.

The FWC accepted that the Employer had lost trust and confidence in the employee but was not persuaded that reinstatement would be inappropriate in the circumstances. The FWC stated that the employee claimed that she could continue to work productively with her colleague with no animosity.

Accordingly, the FWC was satisfied that an order should be made requiring the Employer to reinstate the employee by appointing her to the position in which she was employed immediately before the dismissal, with continuity of employment maintained.

Lessons for employers

Reinstatement as a primary remedy should be seriously considered by employers when deciding whether to terminate an employee. As seen in this case, the FWC will apply reinstatement as the primary remedy, even if the employer has claims that there has been a loss of trust and confidence in the employment relationship.

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