Duelling pistols to cowboy hats: The wildest unfair dismissal cases of 2018
Thursday, December 20, 2018/
The various intricacies of Australian employment law are both difficult to understand and important to be across.
Nowhere is this more apparent than dismissals, or more specifically, unfair dismissals.
Dozens of business owners fronted the Fair Work Commission to defend unfair dismissal cases in 2018, winning some and losing others.
There have been some pretty extraordinary cases over the last 12 months, and some even more extraordinary outcomes.
Here are three of the most interesting cases SmartCompany has covered in 2018.
1. Public servant fired for bringing explosives to work
Business owners often complain that dismissal is a minefield, but spare a thought for public sector administrators.
Last month, a longstanding public servant lost a bid to be reinstated after allegedly bringing explosives and a pair of duelling pistols to work.
The worker in question was a mechanic for Transport Canberra for 17 years. It was alleged he showed co-workers an explosive booster charge, telling them “it would blow a car in two” in early-2017.
It was also alleged he rolled the explosive device across the floor in the direction of a colleague.
In a subsequent unfair dismissal case, the worker claimed the charges were inert and denied a subsequent allegation he also brought black powder duelling pistols to work.
Administrators conducted a multi-month investigation before dismissing the worker, but still ended up in the Fair Work Commission.
The employee lost his bid, with deputy president John Kovacic saying the inoperable nature of the weapons didn’t diminish the gravity of the misconduct.
2. Worker who chest-bumped man for stealing his cowboy hat
Earlier this year a worker who was fired for a fight over his cowboy hat brought an unfair dismissal case against his employer.
In July 2017, Bechtel Construction Australia dismissed a rigger for fighting with another worker who stole his cowboy hat while he was having a beer with colleagues in the on-site mess hall.
CCTV footage showed the worker chased the thief, chest-bumping him before getting punched in the face.
The hat burglar was dismissed without notice, but so was the rigger after a subsequent meeting with management.
In subsequent unfair dismissal action, the worker argued he felt threatened by the thief, who allegedly told him: “I don’t like you and I don’t fucking like cowboys”.
The crux of the claim, however, was that he was denied procedural fairness because the termination letter was handed to him directly after the meeting where he was asked to explain.
This indicated the business had already made up its mind prior to the meeting, he claimed.
Bechtel argued the fight was a clear breach of its code of conduct, but FWC deputy president Abbey Beaumont found while the theft was “stupid” the worker was not merely defending himself with his actions.
Rachel Drew, a partner at law firm Holding Redlich, told SmartCompany there’s nothing to prevent employers from crafting pre-written termination letters.
“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 said earlier this year.
3. Worker with a side hustle reinstated
Back in October, a Melbourne-based business was ordered to rehire an employee it fired for working on a side-business on company time.
Cabinetry and hardware importer Lek Supply alleged sales associate Abigail Jackman stole from the company by working on her own business by operating a side hustle.
Jackman started her own business, Royal Scent & Co, while she was on maternity leave and continued working on it when she returned to Lek.
Lek alleged Jackman was taking calls and fielding text-based customer queries on her phone during business hours.
However, despite finding Jackman did conduct her private business during work hours, commissioner McKinnon ruled the nature of the dismissal was “harsh”.
Jackman was given no opportunity to respond to the reasons for her dismissal, which occurred without notice in a meeting she was not told the purpose of.
Lek Supply chief executive Ben Lek later told SmartCompany he jumped the gun by dismissing Jackman in the manner he did.
‘“With a small business like ours, not having legal representation to know all the ins and outs is probably where we made our mistake,” he said.
Shane Koelmeyer, director at Workplace Law, told SmartCompany in October the case is a classic example of not affording a worker procedural fairness.
“Best practice would have been for the employer to put the allegations to the employee in writing and given her the time and chance to explain or respond.
“The employer’s decision should have then only been made after receiving and reviewing those responses and explanations,” he said.
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