The Fair Work Commission (FWC) declined a former crane driver’s application for unfair dismissal as it found that he had drawn inappropriate images on documents and shipping containers as well as displayed threatening behavior towards his superiors.
An investigation was conducted by the employer into allegations that the employee had drawn a two-metre-tall male genital on a shipping container. When the employee filled out his “Event Statement Form” he continued his artwork and drew another male genital on the back and a crying stick figure on the front of the form. The Commissioner accepted on the basis of the above, that the employee had in fact engaged in the alleged conduct.
The Commissioner also accepted evidence from the employer that the employee had “agitated”, and been “aggressive”, “abusive”, “confrontational” and “threatening” towards other employees and that this conduct was unacceptable. The employer considered the employee’s behavior to be inappropriate as it disregarded the “Employer’s Code of Conduct”, which the employee also admitted to reading.
The Commission ultimately found that the employee’s conduct in relation to both incidents constituted a valid reason for the termination of his employment. To determine whether the dismissal was harsh, unjust or unreasonable the Commission studied the employer’s actions in this matter and its processes. The Commissioner concluded that the dismissal was not harsh, unjust or unreasonable under section 387 of the Fair Work Act 2009 (Cth), as the employer had provided the employee with a/an:
• valid reason for the employee’s dismissal;
• reason for the employee’s dismissal;
• opportunity to respond;
• opportunity to have a support person present at all meetings;
As a result, the employee’s application was rejected and the employer’s diligence enabled them to successfully defend this claim. This is a timely reminder for employers to always follow the process and refer back to the criteria set out in section 387.
If you have any questions about any employee behavior in the workplace call the National Retail Association on 1800 RETAIL.