Threats of physical violence or actual physical assault, have also been considered serious misconduct and grounds for instant summary dismissal. Despite employers adopting a zero-tolerance to violence and aggression in the workplace, a New South Wales employee was found to be unfairly dismissed after a myriad of violent behaviour, including threatening to stab her supervisor.
Fair Work Regulation 1.07 defines serious misconduct as conduct that is willful or deliberate and that is inconsistent with the continuation of the employment contract. This conduct may also be conduct that causes a serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer’s business.
Examples of serious misconduct include theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions. Given this definition, an employer can reasonably assume that a threat to stab a co-worker, falls under conduct that causes a serious and imminent risk to the health and safety of a person and warrants summary dismissal.
Aggressive Behaviour and Serious Misconduct
In Michelle Rawson v Mudgee Golf Club Ltd, the employer summarily dismissed an employee, Ms Michelle Rawson, for serious misconduct after she threatened to stab her supervisor, behaved disrespectfully towards fellow employees and attempted to delete the employer’s Facebook page. The Fair Work Commission in Sydney determined that there was a valid reason to dismiss the employee for serious misconduct but due to the flawed workplace investigation, the dismissal was held to be unfair.
On 16 January 2020, a supervisor of the employer, Mr Rhys George, raised allegations against Ms Rawson that upon engaging in a conversation with her about food orders earlier that day, she became angry and threatened to stab him. Mr George and Ms Rawson had a strained and tense relationship and so a meeting was arranged between all parties on the following day.
The discussions during this meeting were disputed by both employer and employee but the most significant aspect of contested evidence was whether, after initially denying that she had threatened to stab Mr George, Ms Rawson admitted to making such a threat, but that she downplayed the comments by stating that she had frequently used remarks of this nature. Nevertheless, no formalized disciplinary action was taken or documented by the employer after this meeting.
On 19 January 2020, a staff member had complained that Ms Rawson had treated her in a very disrespectful manner and had humiliated her. The employer made a written record of the detail of events. On the afternoon of 20 January 2020, Ms Rawson received an email that confirmed the earlier verbal advice of her suspension from duty and set out three allegations of misconduct. The allegations of misconduct related to inter alia, the stab threat incident of 16 January and the incident of 19 January.
The suspension from the employment letter also advised that Ms Rawson was required to attend a meeting at 10 am on Friday, 24 January, at which time she would be provided with an opportunity to respond to the allegations of misconduct.
Ms Rawson responded to this email, denying the allegations in their entirety and submitting that she had been unfairly suspended. Ms Rawson obtained a medical certificate and provided this to the employer.
Ms Rawson remained on paid suspension/sick leave when on 5 February 2020, she received a letter via email which requested her attendance at the employer’s premises for a formal disciplinary meeting scheduled. The letter set out six numbered issues that were considered to represent allegations of misconduct that Ms Rawson would be provided with an opportunity to respond to. Relevantly, the six allegations of misconduct included the stab threat incident of 16 January, the incident of 19 January, and additional allegations including that Ms Rawson had attempted to delete the club’s Facebook account on 21 January 2020.
Ms Rawson and her support person attended this meeting and denied all six allegations of misconduct. Nevertheless, Ms Rawson received a show-cause letter on 10 February 2020 which stated three allegations of misconduct including, the threat to stab her supervisor, the Facebook incident of 21 January 2021 and the alleged breach of confidentiality. Ms Rawson was given until 5 pm on 11 February 2020 to respond but she did not receive this email and did not respond in the required timeframe.
Consequently, Ms Rawson received a termination letter at 5:33 pm on 11 February 2020 via email, confirming she had been summarily dismissed with immediate effect and without notice. The termination of employment letter relevantly stated that the applicant had been dismissed for serious and wilful misconduct involving “threatening to stab a fellow employee and attempting to shut down the Facebook site of the Golf Club.” Ms Rawson alleged she did not receive this email communication either.
Valid Reason Found – Still Unfair Due to Flawed Procedure
Commissioner Cambridge of the Fair Work Commission in Sydney held that the misconduct of the employee, which involved her unreasonable and aggressive workplace behaviour combined with conduct that intentionally sought to damage the business operation of the employer, was held to be serious misconduct that was plainly inconsistent with the continuation of employment and it established valid reason for the dismissal of the employee.
However, the valid reason for dismissal was evaluated against significant procedural errors in the workplace investigation which were evident in the manner that the employer determined and implemented the dismissal of the employee. The Fair Work Commission, as currently constituted, has frequently stated that communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided.
Thus, the Fair Work Commission held that in this case, the employee was not notified of the reason for her dismissal and was not given a proper opportunity to respond because of the email communication, which was arguably not received. In any event, Commissioner Cambridge held that the proposition that the employee should respond to the show cause notice within 24 hours was inappropriate and unnecessarily onerous.
Although the employer did not have management specialists or other expertise, human resource specialists or other experts should not be required to ensure that fundamental fairness is observed and the employer should have adopted an approach that provided the employee with natural justice.
Ultimately, Commissioner Cambridge of the Fair Work Commission in Sydney held that although the employee was dismissed for a valid reason involving her serious misconduct, the significant procedural defects evident in respect of the determination and implementation of the dismissal of the employee have rendered the summary dismissal to have been harsh and unreasonable. The employee’s dismissal had been found to have been unfair in this instance.
Importance of Procedure in Serious Misconduct Dismissal
The case of Michelle Rawson v Mudgee Golf Club Ltd before the Fair Work Commission in Sydney, demonstrates that despite having a valid reason for dismissal, deficiencies in the process and a flawed workplace investigation may still render the dismissal unfair. Even in the absence of a special human resources team, an employer will still be required to have basic common sense in regards to what is fundamentally fair.
This includes putting forward the allegations to the employee, ideally in person or via phone/Zoom, allowing the employee to respond within a reasonable timeframe and a show-cause process that ensures fundamental fairness and natural justice.
If you wish to discuss your unfair dismissal or a flawed investigation, please contact 1800 333 666 and we can assist you in assessing your eligibility to lodge a claim.
  FWC 1171.
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 Michelle Rawson v Mudgee Golf Club Ltd  FWC 1171 at .
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  FWC 1171.