Decision to dismiss employee in the heat of the moment

Posted by Andrew McGiffert |01 Feb 13 | 0 comments

A decision to dismiss an employee should not be made in the heat of the moment, the Fair Work Commission (FWC) has stressed, in upholding a workers’ safety-related unfair dismissal claim.

The workers was employed by Anglo Italian Concrete for 15 years, until his employment was terminated on 30 April 2012 after he allegedly portrayed a disregard for workplace health and safety in a meeting.

In March 2012, the Victorian worker was operating a ride-on trowel on a slab when a co-worker stood and rode on its guard rail to avoid leaving footprints. The employer’s OHS manager witnessed the safety breach and told the general manager. 

Four weeks later the two men were called into a meeting with the general manager, who planned to give them both a written warning. The worker admitted to the breach of safety requirements and apologised  for the incident, stating that it would not occur again. The worker stated the general manager then told him to “get that fucken (sic) smile off your face” and that he was “a smart arse” and he was going to be sacked.

According to the employer, the worker was smirking during the meeting and told the general manager he “didn’t know half of what goes on onsite”, and “if you don’t like it sack me”. 

At the FWC the worker submitted he was, in fact, dismissed for smiling or “smirking” in the meeting with the general manager and “it is inherently unreliable to dismiss a worker based on one person’s interpretation of that workers facial expression”. The worker tendered material to the FWC to support the view a persons facial expression should not be taken as a reliable indicator of their attitude or emotions. It was accordingly submitted there was no valid reason for the workers termination.

The worker also made various submissions about the process involved, namely he was not given any notification of the reason for dismissal, nor the opportunity to respond to those reasons. He also submitted he was not given the opportunity to be representated at any time and there were no warnings issued.

The employer argued it could “no longer have confidence in [the worker’s] ability to comply with appropriate safety obligations” and that the employment relationship had broken down. 

FW Commissioner David Gregory said the events in the meeting did not constitute a “sound, defensible or well founded” reason for dismissal. 

“Whilst the [employer] submits the [worker’s] attitude and behaviour in the meeting were such to destroy any belief about his commitment to workplace health and safety the evidence also suggests it came to this conclusion in haste and it was not… the impression the [worker]… intended to convey,” he said. 

“This view is reinforced by the fact the [worker] had a 15-year record of service with the [employer]… [and] had no record of poor work performance, or failure to observe relevant safety requirements during that time.” 

Commissioner Gregory found the worker “was given little opportunity to respond” to the dismissal as the written warning “quickly escalated to another outcome”, and the presence of a support person might have prevented the employer’s decision. 

He also found the worker’s “long unblemished record” was an important consideration. 

“It required a more considered view to be formed by the [employer] about the [worker’s] attitude to workplace health and safety, and his past good record in this regard should have been influential in informing the [employer’s] view about [his] approach to and observance of health and safety requirements,” he said. 

Commissioner Gregory found the worker was unfairly dismissed and allowed seven days for the parties to make submissions on a remedy. 

Perri v Anglo Italian [2013] FWC 10 (10 January 2013)

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