Size doesn’t matter – Dismissed employee compensated despite vulgar language

A small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation, despite the Fair Work Commission (FWC) finding the dismissed employee had used language “so grossly vulgar” that it would have been sufficient grounds for his summary dismissal.

In Trialonas v Steric Solutions Pty Ltd [2018] FWC 3996, the FWC was required to consider the summary dismissal of a yard hand who had been employed with Steric Solutions Pty Ltd for over ten years.

The dismissal followed an incident on 6 December 2016 during which the employee called his manager (and the director of the business) a “back-stabbing c*nt” in response to her retort that he should “pull his head out of his f*cking arse”. Whilst the employee claimed this was ordinary language in that workplace, he apologised to his manager the next day.

The employee was not, however, dismissed for this language – his manager summarily dismissed him three days later, at the request of the business owner, allegedly because “you do not listen”. The employee was not given notice of termination or any statement setting out the reasons for his dismissal.

When the employee commenced unfair dismissal proceedings, his manager claimed the dismissal was for the following reasons:

  • The employee consistently used bad language towards her, calling her a “b*tch” and “c*cks*cker” and telling her to “go f*ck myself”;

  • The employee made her feel intimidated by ignoring her;

  • The employee committed serious safety breaches despite directions not to do so, such as strapping boards in the same manner that had previously caused him an eye injury, driving the forklift while she was standing next to him, using the fire hose on the factory floor causing it to become slippery, refusing to wear hearing protection and having his headphones in during work hours; and

  • His serious misconduct on 6 December 2016.

The FWC rejected these as valid reasons for the employee’s dismissal noting that:

  • The employee was allowed to continue work following the incident on 6 December 2016, with no hard feelings;

  • The manager and the employee seemed to have a friendly relationship with each other and she had in fact invited him to her home after the incident on 6 December 2016 and to the local pub; and

  • There was no evidence at all to substantiate the alleged poor performance and conduct.

In those circumstances, the FWC found the reasons for the dismissal were capricious, fanciful and even contradictory. Further, the FWC considered that, even taking into account the employer’s size and lack of industrial relations expertise, the employer could not be excused from the lack of procedural fairness it had afforded to the employee. This was made even more concerning considering the employee’s length of service.

The dismissal was therefore found to be unfair.

However, in assessing the amount of compensation to be awarded, the FWC said it would be “unrealistic” to ignore the incident on 6 December 2016 even if it was not the reason for the dismissal. Specifically, the FWC stated:

“Putting aside that the language was so grossly vulgar to have been inappropriate in any circumstances, the fact it was directed to a woman – and the applicant’s manager no less – is utterly inexplicable and unacceptable. In other circumstances, it would be sufficient grounds for summary dismissal.”

The FWC accordingly reduced the amount of compensation by 15% - to $10,695.20.

Lessons for employers

This case is a lesson on the importance of procedural fairness. It is one of the fundamental principles of the unfair dismissal jurisdiction and can be costly to employers who fail to heed the procedural fairness requirements – regardless of the seriousness of the employee’s misconduct or size of the business.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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