By The Editor
A 30 year employee of a stevedoring company has been reinstated to his job following his dismissal for fighting another staff member, after a Fair Work Australia Commissioner found he was, on the balance of probabilities, “set up” to be portrayed as the aggressor.
The employee gave evidence to the FWA hearing that he had consistently been bullied and sworn at by the other employee, who was a more senior ranking foreman at the port and could allocate shifts at his discretion, which culminated in an incident in June 2011.
The employee and others (including the employee’s son who also worked at the port) said the foreman told the employee to meet him outside, where he threatened to “cave his head in” and encouraged him to throw a punch.
The employee said that given the foreman was much bigger than him and had a reputation for putting “heads into the concrete”, he thought he should “get in” first and punched the foreman twice, following up with a kick after the foreman fell to the ground. A subsequent investigation terminated the employment of both men.
CCTV footage relied upon in the investigation and given to FWA verified the employee’s account of the incident, however the footage was manually controlled, was “jumpy” and skipped seconds of footage at a time, not capturing the foreman’s swing at a third person who tried to intervene in the dispute.
Having obtained that a large number of people (up to 50) could obtain access to the clerical control room where the CCTV controls were located, FWA Deputy President Peter Sams said it was “open to conclude” the foreman had organised someone to operate the camera, and was likely part of a ploy to get the employee sacked.
“It is curious that (the foreman) would goad (the employee) to hit him, then throw no punches and end up on the ground….(the foreman’s) feigned passivity is entirely consistent with his ‘set up’ of the (employee) as the aggressor, in order to falsely portray himself as the innocent victim,” he said.
“It was grossly unfair to primarily rely on the CCTV footage to dismiss the applicant, but ignore the bizarre and unexplained circumstances in which the CCTV footage was created.”
Deputy President Sams also cited evidence from the company’s HR manager (who conducted the investigation) that the foreman’s history of bullying and intimidation wasn’t considered as a contributing factor to the employee’s decision to fight, as well as the unwillingness of others to cooperate with the investigation for fear of recriminations.
“It seems plain enough to me that the (employer’s) procedures as to protecting employees from bullying were not able to stymie, let alone stop, (the foreman’s) ongoing unacceptable conduct,” he said.
Though there was deemed to be a valid reason for the employee’s dismissal, as he had opportunities not to participate in the fight, the “facts and circumstances revealed in this case are unprecedented and extraordinary – almost beyond belief”, resulting in the employee’s “manifestly unjust” dismissal.
Deputy President Sams ordered the employee’s reinstatement to his job and the payment of two months’ wages as compensation. The foreman’s unfair dismissal claim was privately settled.
NOTE: This decision was overturned on appeal on 22 June 2012. Read our story on the appeal decision.