A Fair Work Commission Full Bench has dismissed an employee’s appeal: finding his aggressive interaction in an elevator of the building in which he worked – blocking a member of the public and loudly swearing at her as she exited – justified his dismissal.

In the challenge to a decision by Commissioner Lim on 28 May, the employee argued the incident was not a valid reason for dismissal.

Elevator incident fell short of being a ‘fight’

The Full Bench (DP Roberts Cmr Ryan and Cmr Walkaden) concluded the incident fell short of a “fight”.

Both the employee and witnesses involved contested what happened in the elevator, with Cmr Lim ultimately preferring the evidence, corroborated by CCTV footage, of the other witnesses.

The employee claimed he was standing in the elevator when the member of the public (Witness AB) spoke to him in a hostile way and physically assaulted him with her elbow or shoulder as she exited the elevator.

He said he “reached out in the direction of Witness AB in a natural reaction of self-defence and his hand lightly brushed her shoulder”.

Witness AB gave a different version of events, saying the employee stood in the elevator obstructing access and egress.

She said she had to squeeze past him to exit, and he refused to move.

She said it was possible she had brushed past him as she exited, and as she did so was pushed in the back and heard a man swear loudly.

A third person also present gave evidence to the Commission.

After assessing the evidence, Cmr Lim concluded the employee was not a credible witness.

Cmr Lim found the evidence of Witness AB, the third witness and the CCTV footage aligned – and that the employee had deliberately pushed Witness AB with force and “swore aggressively” at her.

‘Conduct was a valid reason for dismissal’ – Full Bench agrees

Cmr Lim rejected the argument that the alleged interaction could not be a valid reason for termination because it did not constitute a breach of the employer’s Code of Conduct or “behavioural expectations” – and had occurred outside of work hours and the workplace.

“The Commissioner concluded that there was a connection between the conduct and the employment and that the Respondent’s interests had been damaged by the conduct,” the Full Bench noted, finding no error of law in the decision.

The Commissioner did conclude the employee was not notified of the reason for his dismissal and was not given the opportunity to respond. However, he found that despite “serious procedural deficiencies in the process followed to effect the termination, the valid reason for the termination outweighed this consideration and the dismissal was not unfair”.

The Full Bench said: “The (employee’s) contentions of significant error rise no higher than disagreement with the Commissioner’s factual findings and conclusions.

“Nor are we persuaded that there is an arguable case.”

Implications for employers

AREEA members would be acquainted with workplace incidents involving conflicted and/or contested evidence.

Where this occurs, investigations should be particularly thorough and all information carefully documented.

Interestingly, in this case the Full Bench noted the legal authorities do not present a single position or “rule” for dealing with physical altercations – all must be determined based on circumstances.

As a result, employers should be aware a physical altercation at work does not automatically justify a dismissal and does not allow employers to circumvent procedural requirements in terminations.

But it can be a valid reason for dismissal.

For more advice or information, [email protected].