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FWC rejects workplace bullying claim and dismisses unfair dismissal application

The Fair Work Commission has dismissed an unfair dismissal application made by an employee involved in a physical altercation with another employee.  The feature of this claim was that the Applicant proceeded to claim that he had been the victim of workplace bullying.

In short, after a verbal exchange between the Applicant and another employee, the other employee punched the Applicant in the face.  Following this, the two employees wrestled on the ground until they were pulled apart.  When finally the two employees were separated, the Applicant said words to the other employee to the effect ‘Haha. Well done, you’ve just lost your job’.

Both employees were terminated following the event.

At hearing, the Applicant tried to defend his conduct by stating that he was the victim of workplace bullying by the other employee, and that he was ‘physically assaulted and abused on a number of occasions’ by the other employee.

Commissioner Cloghan found that there was no evidence of workplace bullying, nor had the Applicant ever made a complaint to that effect.  The Commissioner did note that the Applicant had made the submission that he was ‘a very strong male person who could easily inflict injuries upon another if he became involved in a physical altercation’.

Commissioner Cloghan ultimately found that the Applicant was responsible for creating the incident:

“In my view, immediately before the physical altercation, [the Applicant] had created a hostile, intimidating and offensive environment. Having established such an environment, [the other employee] responded.”

Commissioner Cloghan upheld that the employer had a valid reason to terminate the Applicant and that a fair process had been followed.  On that basis, the application was dismissed.

Lessons for employers:   As demonstrated by this case, where an employer can evidence both a valid reason to terminate and a fair process in effecting the termination of employment, an application for unfair dismissal should be dismissed.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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