Unfair dismissal; the doctrine of proportionality

This extract from the Fair Work Commission’s quarterly review for practitioners contains a good summary of what might be called the doctrine of proportionality, that is to say that the termination of an employee on the ground of conduct may be regarded as relevantly unfair unless it is a proportionate response in all the circumstances to the employee’s conduct.

“Background

The applicant who made this unfair dismissal application had worked for the respondent for 22 years without ever being subject to formal disciplinary action. Following the announcement of a New Intercity Fleet (NIF) the applicant raised safety concerns with the respondent. The respondent subsequently placed the applicant on a Personal Conduct Improvement Plan (PCIP). Following the PCIP meeting, the applicant’s supervisor raised the topic of the NIF. In response the applicant swore at his supervisor, stating ‘I’m trying hard not to punch you in the face, you need to step away from me’.

 

The applicant was suspended without pay and the incident was subject to a 4-month investigation. The respondent submitted that the applicant’s conduct breached its Code of Conduct. The applicant contended that the Commission should have regard to his work stress, poor mental health and the respondent’s failure to provide support.

 

Outcome

The Commission found that the applicant’s conduct during the incident did not amount to a threat of physical violence. The Commission held that the applicant’s reference to ‘punching’ was a figure of speech, not a statement that the applicant was prepared to be violent. The Commission also found that the applicant’s use of an expletive towards the supervisor breached the Code of Conduct and was a valid reason for dismissal.

 

The Commission considered whether the dismissal was harsh, unjust and unreasonable, and found that the respondent’s response to the incident (suspension and a 4-month investigation) was grossly disproportionate. The Commission found that the respondent chose to apply rules, policies and procedures instead of engaging with the involved parties to address the matter. The Commission further found that the respondent had other reasonable actions available to address the applicant’s conduct.

 

The Commission held that the decision to dismiss was disproportionate to the applicant’s conduct, and that the dismissal was both harsh and unreasonable. The Commission ordered the applicant to be reinstated to his former position. The Commission also ordered compensation for renumeration lost due to the dismissal, less the amount paid in lieu of notice of termination and earnings from other employment.”

Grantham v NSW Trains [2021] FWC 5995 delivered 23 September 2021 per Easton DP”