Insight,

Foul mouthed union worker found unfairly dismissed

AU | EN
Current site :    AU   |   EN
Australia
Belgium
China
China Hong Kong SAR
Germany
Italy
Japan
Singapore
Spain
UAE
United Kingdom
United States
Global

Written by Nicole Keijzer.

Employers should maintain consistent disciplinary outcomes for similar conduct across its workforce to minimise exposure to unfair dismissal proceedings.

Key impacts

  • 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.

Facts

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.

Appeal

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.  

Outcome

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.

LATEST THINKING
Insight
On 2 August 2022, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 was passed (Aged Care Bill), introducing important regulatory changes to Australia’s aged care sector. The Bill makes numerous legislative amendments, including to the Aged Care Act 1997 (Cth) (Aged Care Act) and the Aged Care (Transitional Provisions) Act 1997 (Cth) (Transitional Provisions Act), and responds to various recommendations made by the Royal Commission into Aged Care Quality and Safety (Royal Commission) Final Report (Report). The Report identified the provision of substandard aged care services and perceived systemic failures in the aged care sector.[1]

08 August 2022

Insight
The Federal Court has refused an application to stay proceedings to quantify compensation for patent infringement (quantum proceedings) pending the outcome of separate parallel proceedings challenging the validity of the infringed patent on new grounds. The case is significant as intellectual property cases are regularly bifurcated with liability determined separately damages or an account of profits. A patentee may also bring consecutive infringement cases and therefore have two separate cases considering invalidity issues for the same patent running in parallel.

03 August 2022

Insight
Since the introduction of a nationwide Marketing Authorization Holder (MAH) system in 2019, licenses have linked directly to therapeutic products rather than manufacturers.

03 August 2022