A construction worker has been unsuccessful in his claim of unfair dismissal, after a Western Australian business fired him for his involvement in a fight over his cowboy hat, which was stolen while he was having a drink at the staff village of a construction site.
In July 2017, Bechtel Construction Australia fired an employee who had been working as a rigger on the Wheatstone Project for serious misconduct displayed when the worker got into a fight.
The worker brought unfair dismissal proceedings against the company, claiming he was denied procedural fairness when he was fired and that he was simply responding to an unprovoked attack.
The event that caused the dismissal occurred in the wet mess hall of the project “village”, where the worker was having a beer with colleagues. Another staff member at the site, who was not known to the worker, walked past him and took the cowboy hat he was wearing from his head and walked away.
The Fair Work Commission saw CCTV footage of the incident, which showed the worker chasing the man to get his hat back, and then chest-bumping him before the unknown person punched the worker in the face.
The man who stole the cowboy hat was dismissed without notice.
However, the rigger worker was also dismissed after a meeting with management, which decided the worker’s response to the situation — including chest bumping the man who had taken his hat — was also a breach of the company’s code of conduct.
In bringing the unfair dismissal case, the worker said he reacted to the man in the way he did because he felt threatened. He claimed that when he chased him to get his hat back, the man said: “I don’t like you and I don’t fucking like cowboys”.
The worker also claimed he was denied procedural fairness because the company handed him a termination letter directly after the meeting where he was asked to explain himself, indicating the business had already made up his mind about dismissing him.
However, in response, Bechtel Construction outlined the worker had signed up to a clear code of conduct relating to his employment and accommodation at the remote project site, and was not to engage in “offensive, intimidating, anti-social or violent behaviour in any form, regardless of how or why it was initiated”.
In weighing up the case in December last year, Fair Work Deputy President Abbey Beaumont found that while the act of stealing a hat from another worker was “stupid” and “reprehensible”, the actions of the worker in response to this incident quickly escalated the situation into something aggresive.
“He was violent toward the unknown person … I am unconvinced the applicant was defending himself by his action,” Beaumont said in her decision.
The business, on the other hand, was found to have followed the right procedures by meeting with the worker and quickly determining that his actions amounted to misconduct.
Employers must ask for explanation even with serious misconduct
Rachel Drew, a partner at law firm Holding Redlich, says physical altercations are the most typically accepted type of “serious misconduct” at work and can often be used as basis for immediate dismissal.
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However, even when a fight or aggressive act takes place, employers must allow workers a chance to respond before a termination can be processed.
“Even an employee who has engaged in serious misconduct is entitled to a fair process. Asking the employee to explain themselves is the most appropriate way to go,” she tells SmartCompany.
There is nothing to prevent an employer from crafting a pre-written termination letter to deliver to a worker in the event that their explanation for their behaviour is not sufficient, once you meet with them, she says.
“But there’s nothing to say the employer can’t have two written letters in this instance — a termination letter, and maybe a second letter that says, ‘you have explained yourself, but here’s a written warning about your conduct’,” says Drew.
If an employer believes serious misconduct has been committed, they are entitled to serve a termination letter provided they have genuinely listened to the defence of the worker involved, if there is one, Drew says.
“The employer needs to actually take into account what the employee says. If for example, they say, ‘it wasn’t me’, you do have to genuinely take that claim into account,” she says.
SmartCompany contacted Bechtel Construction for comment but did not receive a response prior to publication. The former worker could not be contacted for comment.