Fighting employee lost the fight to win back job

In a recent case, Weir v Bechtel Construction (Australia) Pty Ltd, the Fair Work Commission found an employer did not unfairly dismiss an employee by terminating his employment after he was involved in a fight.

Bechtel Construction (Australia) Pty Ltd (Bechtel) had villages available for employees to live in during their work on certain projects. The villages had a high proportion of men and full-strength alcohol was served. As such, Bechtel believed there was the potential for aggressive behaviour and thus had strict rules in place to prevent any kind of fighting or violence.

Each employee who checked into the village was required to sign a “Golden Rules Form”. This form stated, “any person or persons found to be fighting (whether they be the instigator or the retaliator) within the Wheatstone Accommodation Village area anywhere within the Village facilities shall have their accommodation withdrawn immediately”. A similar rule was present in the Project Work Rules, Employee Code of Conduct and Community Code of Conduct.

Bechtel made sure their employees were aware of their obligations and the probable consequences, including the possibility of termination without notice.

On 29 July 2017, Mr Weir was having a beer with his co-workers when someone took his cowboy hat from his head. CCTV footage showed Mr Weir turn around and grab the person from behind near the neck. The hat was thrown before Mr Weir pulled the person backward. Mr Weir was followed by the person as he retrieved his hat. Mr Weir moved chest first towards the person, before the person swung three punches that connected with Mr Weir’s head. Both parties were then pulled apart.

Bechtel conducted an investigation into the altercation. Mr Weir attended a disciplinary meeting where he claimed he used self-defence as he felt intimidated by “an aggressive verbal assault” and did not engage in a fight. He argued the person had said “I don’t like you, I don’t like fucking cowboys”.

Despite Mr Weir’s claims, Bechtel decided to terminate Mr Weir’s employment for serious misconduct. Mr Weir was provided a pre-prepared termination letter at the disciplinary meeting.

Mr Weir claimed he was unfairly dismissed as his actions were consistent with self-defence, and claimed he was not afforded procedural fairness because Bechtel had decided to terminate him before the meeting, as evidenced by only one letter being pre-prepared, being the letter of termination.

Decision

The Fair Work Commission found the dismissal was not unfair, unjust or unreasonable. The removal of the cowboy hat was “juvenile”, and while the statement made by the person was “inflammatory” the provocation was not enough to reduce “the blameworthiness or seriousness of the act of [Mr Weir]”.

Of particular importance, the Fair Work Commission noted that Bechtel “had gone to great lengths to alert employees of their obligations regarding their behaviour and the consequences that may follow with regard to a breach of such obligations”.

The Fair Work Commission also considered the pre-prepared letter of termination. Such a letter was not found to indicate a decision to dismiss had been made before the letter was provided to Mr Weir. The Commission said, “I find nothing unusual about the practice of pre-preparing a termination letter that may or may not be used in circumstances where a view has been formed concerning certain conduct”. Forming a view was held to be different to making a decision.

As such, the Fair Work Commission found there was procedural fairness and the dismissal was valid. Consequently, the application was dismissed.

Key issues for employers

It is vital employers have clear workplace policies that are provided to employees that outline what is, and what is not, acceptable behaviour. In this case, the effort made by Bechtel to educate employees of their obligations was a factor in their favour, supporting their contention that the dismissal was not harsh, unjust or unreasonable. Employers should also emphasise in their policies the possible consequences of breaching these policies so that employees are aware of the severity of any misconduct.

Employers also need to ensure they provide procedural fairness when dismissing employees. Employees must be provided an opportunity to respond to allegations before a decision is made regarding whether or not they are terminated. While a pre-prepared termination letter may not be evidence of a decision already being made, employers must ensure they listen to the employee’s response to any allegations of misconduct and only make a decision after this.

Read the full decision here

* PCC Employment Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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