Telephone dismissal after assault of employer stands

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Telephone dismissal after assault of employer stands

The AIRC upheld the validity of a dismissal conveyed by telephone following the alleged assault by an employee on a supervisor.

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The AIRC upheld the validity of a dismissal conveyed by telephone following the alleged assault by an employee on a supervisor. Commissioner Cargill noted that dismissal by telephone is not a preferred option as the employee’s rights may be jeopardised. However, in this case, the telephone conversation was in the nature of a confirmation of a situation that had already been settled.

Background

The primary reason for the termination of the applicant's employment was related to his conduct rather than his capacity or the operational requirements of the respondent's business.

An altercation took place between the applicant and a supervisor over the alleged failure of the applicant to wash a vehicle.

Finding on the facts

Commissioner Cargill rejected the unfair dismissal claim despite having some reservations about the procedure adopted:

‘I am not satisfied that the applicant's actions on 30 April 2004 can be excused as being the result of provocation or viewed as self-defence.

In hindsight perhaps it was not very diplomatic of Mr Elias to have approached the applicant after his lunch break about the applicant's failure to wash the trailer.

… I do not accept that Mr Elias poked the applicant in the chest or grabbed his arm.

It follows that I am not satisfied that self-defence played any part in the applicant's response. I note here that, even if I had found to the contrary, the applicant's actions in grabbing Mr Elias by the throat and pushing him backwards through the workshop would, in my view, have been out of proportion to the alleged provocation in any case.

I am satisfied that the applicant's actions on 30 April 2004 amounted to serious misconduct such as to provide a valid reason for the termination including the fact that it was summary dismissal.’ allowed

Telephone communication

Although the commissioner was satisfied that the applicant was notified of the reason for the termination, she was not satisfied that the applicant was given a proper opportunity to respond to the reason for termination:

‘After the altercation Mr Elias left the workplace. He telephoned Mr Hillier [manager] and told him that he, Mr Elias, was finished. He informed him of the altercation and what had happened.

Whilst I do appreciate Mr Hillier's difficulty in being some considerable distance from the workplace at the relevant time, in my view, termination by telephone is not appropriate.

Apart from the practical problems in carrying out a proper investigation and providing an employee with an adequate opportunity to respond, such action could often, as in the present case, leave the employee with the impression that they hadn't been able to present their side of the story.

I do note that Mr Hillier spoke to the applicant about the situation on the following Sunday, however, that was after the termination had taken effect.

The applicant's performance had only limited relevance to Mr Hillier's decision to dismiss. To the extent that it was relevant I am satisfied that the applicant had been spoken to about his performance especially during the discussion on 7 April 2004.’

Other factors

The respondent's undertaking was not large and clearly there were no dedicated human resource management specialists or expertise in the business.

Mr Hillier's evidence was that this was the first dismissal that he had carried out. He had been informed by his father that there had been no previous dismissal in the 35 years that the business had been established. The commissioner noted:

‘I am satisfied that these factors had some impact on the procedures followed in effecting the termination.’

The commissioner concluded:

‘After considering all of the conclusions outlined above I find that the termination of the applicant's employment was not harsh, unjust or unreasonable. The application is dismissed.’

Wesley Ross Whitehead v JH & GT Hillier – AIRC - Cargill C - 28 October 2004.
 
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