A manufacturing factory worker with 37 years of exceptional service (with only 1 warning) engaging in misconduct would maybe expect to be given some slack by the Fair Work Commission. However, most if not all manufacturing workplaces will not and cannot accept behaviour and conduct that is:
- Abusive words
- Lack of contrition or remorse for the conduct
- Refusing to follow directions to keep matters confidential
In Elmazovski v Fletcher Insulation  FWC 5990 (27 September 2021) the employee was an insulation factory worker who contacted a fellow employee. In the discussion the fellow employee had mistaken an instruction to slow a machine down to shutting the machine down.
- Spoke aggressively to the other employee and called him a “fuc**ng idiot
- Made threats to the “sort this out” implying a punch up
- Clenched his fists and made a swinging motion
- Told the other staff member that he would “crack his head open and make him bleed”
- Said to the other employee “let’s go outside and sort this out”
The employee was eventually dismissed for serious misconduct and filed an unfair dismissal claim.
The Fair Work Commission sided with the employer and found the employee’s dismissal was fair even though the employee had an almost unblemished level and length of service. Why?
Reason 1 – The reason was fair enough
It was plain to see that the employee had engaged in serious misconduct – menacing behaviour and aggressive conduct is unacceptable in any workplace. To also then have a lack of contrition and refuse to apologise shows an inept understanding of the seriousness and inappropriateness of the conduct.
Reason 2 – Evidence supported the finding of misconduct
A workplace investigation was undertaken and as well as witnesses and CCTV footage supporting the finding of the employer the witness for the employee also brought contradictory evidence.
An investigation with evidence of fact that is reasonable and presentable shows the Fair Work Commission that the decision to terminate the employment was not taken lightly. It is also clear from the Fair Work Commission that they will support a workplace who are trying to protect other employees from aggressive conduct of an employee.
The Fair Work Commission as part of their remit look at credibility of witnesses. Consistency and believability are integral but also how convincing the evidence might be.
Reason 3 – Lack of remorse or contrition is frowned upon
The employee’s lack of contrition in their conduct showed the employer and the Fair Work Commission that the employee’s aggressive conduct could happen again. It is also showed they misunderstood or refused to understand what is acceptable in the workplace.
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Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.