Written by Nicole Keijzer.
Employers should maintain consistent disciplinary outcomes for similar conduct across its workforce to minimise exposure to unfair dismissal proceedings.
- Employers should be aware that while name calling of an obscene nature warrants a disciplinary response, it may fall short of justifying dismissal
- Employees who engage in similar misconduct should have broadly consistent disciplinary outcomes. It is important for employers to consider whether dismissal is warranted in circumstances where final warnings have previously been issued for similar misconduct.
The matter before a Full Bench of the Fair Work Commission concerned the appeal of two unfair dismissal proceedings, brought by Michael Gelagotis and Michael Hatwell. The case forms part of a wider dispute at the Longford gas plant in South Gippsland, related to a decision by Esso Australia Ltd (Esso) to contract out part of its maintenance work to MTCT Services Pty Ltd (UGL). The works were previously contracted to a joint venture group, which terminated when Esso awarded the maintenance contract to UGL. This dynamic created tension on site, triggering UGL to conduct two separate reports into the onsite behaviours.
Esso conducted an independent investigation into Mr Hatwell and Mr Gelagotis' conduct and their poor treatment of their UGL colleagues. The first report found that Mr Hatwell had abused a UGL employee, calling him a "f***ing scab" on 31 July 2017. The second report found that later the same day another UGL employee had attempted to commit suicide and left a note referring to the hateful and segregating treatment of Mr Hatwell and Mr Gelagotis. After its investigation, Esso summarily dismissed both Mr Hatwell and Mr Gelagotis.
The Full Bench firstly considered Mr Gelagotis' appeal, who was summarily dismissed from his employment at Esso for engaging in conduct designed to exclude, ignore and isolate employees of contractors on the work site. Mr Gelagotis contended the Commission at first instance did not appropriately characterise his motive and thereby erred in its original finding he targeted UGL employee. However, the Full Bench found that the Commission's findings were reasonably open to it and it would have drawn the same inference in the circumstances.
The Full Bench then turned to the dismissal of Mr Hatwell, who was dismissed for various reasons including for contravening Esso's harassment policy after calling a UGL employee a "f***ing scab". On appeal, the Full Bench accepted that Mr Hatwell's dismissal was manifestly unjust because the valid reason for his dismissal was narrowed to a single contravention of Esso's harassment policy, specifically the name calling. The Full Bench found that the contravention took place in the context of significant tension involving a protracted industrial dispute that had resulted in a material change to the working environment and this context needed to be taken into account.
Importantly, the Full Bench placed emphasis on the fact that Esso's HR Manager gave evidence she had given final warnings to other employees who had used similar language to "scab" and "grub" instead of dismissing them from employment. Further, that she did not think the isolated use of the word "scab" would generally justify the termination of an employee's employment. Mr Hatwell's long period of service, largely unblemished disciplinary history and the significant impact that the dismissal had on Mr Hatwell's family were mitigating factors that were also taken into account. The fact that several of the other allegations made against Mr Hatwell were unsubstantiated was also relevant.
In the circumstances, the Full Bench considered Mr Hatwell's conduct warranted a disciplinary response that was short of dismissal. Consequently, Mr Hatwell's dismissal was harsh and it followed that he was unfairly dismissed.
The Full Bench granted permission for Mr Hatwell's appeal on the basis it was in the public interest as the decision at first instance fell outside the bounds of legal reasonableness. The matter was remitted back to the member at first instance to consider whether a remedy should be granted to Mr Hatwell.