A former employee at a global logistics business has been awarded $21,000 by the Fair Work Commission after she was sacked for allegedly telling a co-worker to “go and punch Stacey in the face”.
Melanie Davidson began working for Visa Global Logistics in 2007, however was fired in May this year following an alleged telephone conversation that took place the week before.
In a letter sent to Davidson the day after the incident, her employer also referred to an incident back in February where she had allegedly raised her voice and swore at another staff member.
The matter was taken to the Fair Work Commission and, under cross examination, Davidson admitted to calling the employee a “fucking cunt” during the argument in February.
However, the former employee said the comments she made during the telephone conversation, which happened shortly before she was dismissed, were meant as a joke and taken out of context.
The commission heard the company made a “without prejudice offer” of $10,000 to Davidson shortly before she was dismissed, however, this was rejected.
As a result, the former employee was paid four weeks of pay in lieu of notice.
Visa Global Logistics told the Fair Work Commission it provided procedural fairness to Davidson by warning her “numerous times, formally and informally” about her conduct.
During the hearing, Commissioner Jeff Lawrence said he accepted the comment about punching Stacey in the face was meant as a joke and, while it could have been misunderstood, it was not spoken directly to the employee concerned.
“It is clear that there was no threat of violence or act of intimidating behaviour to the employer or another employee,” Lawrence said in his judgment.
“The applicant had never met Stacey … In summary, I find that there was not a valid reason for dismissal.”
As a result, Lawrence ordered Visa Global Logistics to pay Davidson $21,000.
What are the lessons for small business owners?
Employment lawyer Peter Vitale told SmartCompany this case shows how an employer’s decision to terminate an employee needs to be made on a “sound and reasonable conclusion” of serious misconduct.
“The employer must also implement disciplinary measures consistently among its workforce,” Vitale says.
While the employee in this case was found to have used inappropriate language, Vitale says the behaviour fell short of misconduct because it did not constitute “an actual threat of violence”.
“The employer also relied on a previous warning given to the employee for using offensive language, but the commission found that warning was not appropriate,” he says.
“In this case, as far as the law is concerned, the employer simply got it wrong.”
SmartCompany contacted Visa Global Logistics but did not receive a response prior to publication.
SmartCompany was unable to contact Melanie Davidson for comment.
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