Genuine threat of violence justified dismissal

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Genuine threat of violence justified dismissal

A worker who told a WHS manager there was “going to be another Columbine” if his safety complaints weren’t addressed was fairly dismissed.

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A worker who told a WHS manager there was “going to be another Columbine” if his safety complaints weren’t addressed was fairly dismissed.

The Fair Work Commission found the comment was a genuine threat of violence, and the employer had a duty of care to protect employees from such threats.

[Full text of this case: L v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 3885 (17 June 2016)]

Safety concerns

 

In September 2014, a bus driver experienced issues with his driver’s seat “bottoming out” – where the seat falls to the bottom of its movement range and exposes the driver to the risk of jarring injuries. He subsequently reported the issue to his manager.

By December, the bus driver telephoned the Australian Capital Territory Internal Omnibus Network’s (ACTION) WHS manager to further discuss his safety concerns. Over the course of the conversation, the WHS manager believed the worker made threatening statements and acted aggressively.

The worker alleged that ACTION management “had employed whistleblowing tactics to discredit him” and his claims, that management were corrupt, and that he “had had enough and there would be reprisals”.

The worker also mentioned that “if ACTION management touch me, this will be another Columbine” – a reference to the 1999 massacre at Columbine High School in the US.

The WHS manager reported the conversation to the organisation and the worker was stood down on full pay and reported to police.

Idle threat?

 

The worker’s representative originally responded to his dismissal on the worker’s behalf. Among other things, it was stated that the worker claimed he actually said “I am scared. I am scared that something is going to happen to me, and if it does there is going to be another Columbine.”

The worker later claimed the dismissal was a harsh and disproportionate response to an “idle threat”.

He stated that he held genuine concerns about the safety and welfare of his fellow bus drivers, and had shown remorse after the incident.

He also stated he had been feeling anxious at the time of the conversation, as he felt targeted by his superior for raising his safety concerns.

However, ACTION told the commission the worker's statements weren’t made in jest, and were accompanied by shouting, an aggressive tone and critical statements about ACTION management.

The commission was also told about past complaints ACTION had received about the worker from colleagues and members of the public. After these complaints, the worker had been required to attend emotional intelligence training.

Inconsistencies in the bus driver’s evidence, particularly his recollection of the conversation with the WHS manager, were also pointed out.

ACTION also told the commission that issues with drivers’ seats had been investigated by WorkSafe ACT and they had been advised no further action was required.

Decision

 

Deputy president Kovacic found the employer was entitled to take the worker’s threat seriously, despite neither the WHS manager nor the worker’s superior stating they feared for their lives.

He also referred to Priolo v Anthony's Manufacturing Jewellers AIRC 1097 [2004], which found “a threat of violence can be justification for termination of an employee’s employment”.

"As to the genuineness of the threat, [the worker's] reference to 'reprisals' in his conversation with [the WHS manager] when allied with the reference to 'Columbine' support a finding that [he] was making a threat of some form of action, albeit that it was unlikely to include a massacre," DP Kovacic said.

He rejected the arguments that the worker was targeted by management for expressing safety concerns and feared for his own safety when he made the Columbine comment.

The bottom line: Threats in the workplace can create a situation that intimidates workers and management. If assessed as genuine, threatening language and behaviour can justify dismissal.

L v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 3885 (17 June 2016)

See also: Dismissed for aggressive behaviour and refusal to obey direction

Aggressive behaviour — dismissal fair

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