Unfair dismissal and fighting by employees

Fighting between work colleagues will not ordinarily constitute a valid reason for the dismissal of a participant unless there is a relevant connection to the workplace.

“Where the conduct in question concerns fighting, the attitude of the Commission (generally) will tend to be that, in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which a fight occurred, as well as other considerations, such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of a fight, relevant considerations include whether the dismissed employee was provoked, and whether he or she was acting in self-defence. 57……………………….Relevant law as to valid reason founded on out of hours conduct

[67] In Rose v Telstra Corporation Limited (Rose), 63 Vice President Ross (as his Honour then was) identified the alternative circumstances in which “out of hours” conduct can constitute a valid reason for dismissal:

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

  • viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
  • it damages the employer’s interests; or
  • it is incompatible with the employee’s duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct”. 64

[68] Rose has been cited and applied in many decisions of this Commission. Its facts concerned a physical altercation in a hotel room between two employees of Telstra. Telstra arranged for Mr Rose to be in Armadale for work, and paid him an overnight allowance. On the night the relevant incident occurred, the employees went to dinner and then a nightclub after work, where they consumed alcohol, before returning to a private hotel room later in the evening. It was in this hotel room where the physical altercation between the employees occurred. During that fight, Mr Rose was cut across the chest that rendered him unfit for work. At the time the fight occurred, neither employee was wearing clothing that identified them as Telstra employees, nor were they “on call” (albeit Mr Rose was due to commence work the following day). Mr Rose was terminated for his involvement in the fight. However, it was found that Mr Rose’s involvement in the fight lacked the required connection with his employment with Telstra (even though he was being paid a living away from home allowance per day). Further, there was no evidence to support the conclusion that Mr Rose’s conduct tarnished the public reputation of Telstra. In the absence of a valid reason, Vice President Ross found the dismissal of Mr Rose to be unfair.

[69] Further to Rose, Mr Chambers relies upon Keenan v Leighton Boral Amey NSW Pty Ltd (Keenan). 65 The facts and reasoning of Keenan warrant elucidation. An employee had attended a Christmas function organised by his employer, during which he became heavily intoxicated. Later in the evening, and following the conclusion of Christmas function, the employee and his colleagues relocated to another venue. From that time onwards, the employee engaged in several oafish, boorish acts, including the use of offensive language, attempting to inappropriately touch a female colleague, and kiss another female colleague without her consent.

[70] The employer terminated the employee for this conduct, arguing that such behavior would fall afoul of the Sex Discrimination Act 1984. As the employer could be vicariously liable for that behavior, the employer submitted that such a connection gave rise to a valid reason for dismissal. However, Vice President Hatcher disagreed with that position. The Vice President reasoned as follows:

“I do not consider that conduct … can be said to be in connection with Mr Keenan’s employment. The social interaction which occurred there was not in any sense organised, authorised, proposed or induced by [the employer]. Those who gathered there did so entirely of their own volition. It was in a public place. There was nothing in [the employer]’s Code of Conduct or relevant policies which suggested that they had any application to social activities of this nature … the conduct in the upstairs bar was merely incidental to [the employee’s] employment.

It follows from that conclusion that [the employee’s] sexually harassing behavior … was not rendered unlawful by s.28B of the [Sex Discrimination Act 1984], and it was not conduct for which [the employer] was vicariously liable. It cannot for that reason constitute a valid reason for dismissal, even though that conduct, as I have found, fell within the statutory definition of sexual harassment.1

Leaving aside the application of the [Sex Discrimination Act 1984], I do not consider that what occurred at the upstairs bar constituted conduct within the scope of [the employee’s] employment which could legitimately constitute a valid reason for dismissal in accordance with the principles stated in Rose v Telstra … [I]t was conduct which occurred in essentially a private social setting, albeit involving persons sharing a common employer who had just attended an official Christmas function, it was not conduct which could be regarded as indicative of a rejection or repudiation of Mr Keenan’s employment contract”. 66

[71] A contrasting case to Keenan is Drake v BHP Coal Pty Ltd; Bird v BHP Coal Pty Ltd (Drake; Bird v BHP), 67 which Toll seeks to rely upon. Again, the factual circumstances warrant consideration. Two employees were terminated because they had been involved in a physical alteration at a Christmas function organised, in part, by their employer. Despite the employees’ position that they were under the belief the event had been privately organised by their colleague, the employer contributed to the purchase of food and alcohol, and otherwise sanctioned the event.

[72] In these circumstances, Deputy President Ashbury found that there was a sufficient connection between the conduct of the employees and their employment, so much so as to give rise to a valid reason for dismissal. The Deputy President reasoned:

“I am also of the view that the fact that 90 people including 60 employees of [the employer] and their families were gathered in one venue with a common purpose of celebrating Christmas, is sufficient to establish that the event was work related … If 30 – 40 employees of [the employer] were gathered in a venue for drinks, united by the fact that they work in accordance with the same roster for the same company, and some of those employees had an altercation with another employee of [the employer] or a member of the public, those employees should not assume that their conduct will be considered out of hours conduct that is not related to work and to which [the employer’s] policies do not apply.

Where an employee physically assaults a work colleague in a public place in the presence of other work colleagues, the assault may be conduct that is likely to cause serious damage to the relationship between the employer and the employee. It may also breach company policies or procedures … Other employees … should not be put in a position where they witness an assault or are caught in the middle of it. … [I]t is likely that where a large group of its employees gather in a public venue and consume alcohol and some of that group have a physical altercation, that [the employer’s] interests will be damaged. The likelihood of such damage increases where there are members of the public who are not employed by [the employer] who are present at the relevant time”.

In any event, and in my view, all that matters for the purposes of the test in Rose is whether the belief as to self-defence held by Mr Chambers was reasonable to the extent that the holding of such a belief was not baseless or contrived, or such that it was incompatible with Mr Chambers duty to Toll to be honest. In this regard, I consider that Mr Chambers was and is entitled to hold and maintain such belief, both with Toll, and before this Commission. Even if it might be said that such a belief is arguably wrong (by reference to the strict legal definition of self-defence), it is not a belief that Mr Chambers can be said to hold disingenuously, or for the purposes of misleading Toll about his conduct or role in the Fight.

No valid reason

[85] In view of my having found that the impugned conduct vis-a-vis the Fight does not bare a sufficient connection with Mr Chambers’ employment, and my also having found that Mr Chambers’ held a genuine belief that he was acting in self-defence at the time, I conclude that there was not a valid reason to dismiss Mr Chambers.”

Chambers v Toll Transport Pty Ltd –(202)) FWC 5819 delivered 6 November 2020 per Boyce DP