Unfair dismissal and the context of a situation

This conclusion to a detailed decision by a Commissioner of the Fair Work Commission about the importance of context in an unfair dismissal case demonstrates the importance of it to the justice of a decision.


[161] It is not in dispute that the Applicant was involved in a heated discussion. It is not in dispute that Mr Brown attempted to interrupt the Applicant a number of times whilst the Applicant was speaking. It is not in dispute that Mr Brown got frustrated and walked out of the meeting. It is not in dispute that the Applicant was talking loudly. The Applicant and his colleagues say this was his normal behaviour and the normal volume of his speech. It is not in dispute that the Applicant became increasingly agitated every time Mr Nicholson made a comment during the meeting. It is not in dispute that Mr Nicholson did not take control of the meeting by either shutting it down, de-escalating the situation in a genuine way or simply leaving the meeting. It is not in dispute that Mr Nicholson said that he felt threatened by the Applicant’s comments. It is not in dispute that the Applicant responded to Mr Nicholson with the words “what did I say?”.

[162] There is no doubt that the Applicant was frustrated during the key message board presentation. There is no doubt that the Applicant was agitated. There is no evidence to suggest that this incident was nothing more than a one-off event. The Applicant had received two written warnings over his 40-year career, which both expired as per the sunset agreement between the Respondent and the AWU, but no final written warnings. The Applicant had received numerous commendations throughout his career. Even if the Applicant threatened Mr Nicholson, I find that terminating an employee with 40 years’ service for that chain of events is harsh.

[163] I am satisfied that the Applicant probably said the words “I used to hit people, I don’t give a f**k”. Whether the Applicant said that phrase or “I don’t do that anymore” is of little consequence on the basis that the words used are in the past tense. For a threat to be a threat, it must identify future conduct. The Applicant’s future conduct was that he would talk shit to Mr Nicholson, if Mr Nicholson talked shit to him. I have found earlier that this threat by the Applicant was inappropriate and is a breach of the Respondent’s Code but does not provide a valid reason for the Applicant’s termination.

[164] I do not regard this threat as breaching the Respondent’s Cardinal Rules because the Applicant has not “physically abused or verbally threatened” Mr Nicholson with violence. In this regard, I agree with the Respondent’s submission identified at paragraph [85] above, in that using foul language in anger or at somebody would result in the perpetrator receiving a written warning because it is not a breach of the Respondent’s Cardinal Rules.

[165] Many of us could talk about our previous successes or failures in aggressive activity, the degree of which will be over inflated over time, but the fact that someone threw a punch on a football field 30 years ago does not mean that they will repeat that behaviour in the workplace now. To draw such a conclusion is unjust and unreasonable.

[166] The Commission has cautioned on numerous occasions against the comparison of events and outcomes of unfair dismissal cases and the need to compare like with like. I am satisfied and find that the actions of the Applicant are similar in nature but lower in severity than those of Mr Brown. In the Applicant’s case, there was no personal verbal attack questioning Mr Nicholson’s intellectual capacity, nor was there any attempt to use the term ‘f**k’ as a noun. Further, there was no behaviour undertaken to intimidate or threaten Mr Nicholson. As a result, it would be unfair to terminate the Applicant where Mr Brown simply received a warning note on his file.

[167] Following the reasoning in Australian Meat Holdings at paragraph [95] above, I am satisfied and find that the Applicant’s termination was:

  1. a) unjust because the Applicant did not threaten anybody with violence. If I am wrong and the Applicant did threaten Mr Nicholson with violence, then the Applicant’s termination was:
  2. b) unreasonable because it was decided on inferences and opinions where there was no evidence of the likely future conduct of the Applicant based on his long employment history; and
  3. c) harsh on the basis that the Applicant lives in the Illawarra Region of NSW which has a high unemployment rate compared to the rest of NSW, is close to 60 years of age and is likely to spend the rest of his normal working life unemployed. Further, as I have found above, termination for the actual or perceived inappropriate conduct of the Applicant is disproportionate as a penalty on the basis that the robust relationship that Mr Nicholson has with his employees is one where Mr Nicholson makes threats to the employees about their ongoing employment on a regular basis.

[168] For all of the reasons identified above, I find that the Applicant’s termination was harsh, unjust and unreasonable.

[169] I find that the Applicant has been unfairly dismissed.”

Hughes v BlueScope Steel (AIS) Pty Ltd (2022) FWC 4 delivered 20 January 2022 per Riordan C