Gross abuse post-sacking not enough to sway Fair Work

Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963 (15 December 2014)

In many unfair dismissal cases, employers contend they have lost confidence and trust in the sacked employee as part of their case to prevent reinstatement. Recently, despite having hard evidence this argument had legs, an employee has been reinstated by the Fair Work Commission.

The employee had been sacked some nine months earlier, and as the case progressed, the employee made some seriously nasty comments about the company and his colleagues, including management, to a variety of personnel from the company. All in public. All witnessed. The evidence of this was put before FWC, but to no avail.

The employee had been sacked for failing to follow safety requirements of the employer. In so doing, he had been abusive to senior staff. FWC found the company had a valid reason to sack the employee. But FWC nevertheless found the dismissal harsh. It did this on the basis the employee was a union delegate and therefore he was entitled to question safety requirements, and further, his prospects of finding work in the small town in which he lived were poor.

Then on top of this, FWC effectively dismissed the evidence of the employee’s abusive behaviour after he had been sacked. The evidence was clear – the employee had no respect for management and was nastily abusive to his (then) former workmates in public.

This is a disappointing outcome, given the FWC found the employer had a valid reason, grounded on safety. The employer’s evidence-based argument of a breakdown in the relationship, not only between employer and employee, but between employees, also fell on deaf ears.

This decision demonstrates the unfair dismissal regime is still very much a mine-field for employers. Even gross abuse of the employer and workmates was not enough to persuade FWC the employer had made the right decision in sacking this employee. It is another example of bad behaviour being effectively excused by relying on the consequences the employee experiences. The excuse of poor job opportunities is particularly feeble given the situation should have been obvious to the employee. He was not a child. He had lived and worked in the town for almost 10 years. He ought to have known his behaviour risked his livelihood in a tight job market.

It also underscores the need for alternative disciplinary tools in enterprise agreements, such as fines, demotion or suspension to try to avoid the outcome this employer has had to endure.