In a recent Fair Work Australia decision, Symes v Linfox Armaguard Pty Ltd [2012] FWA 4789, Armaguard was ordered to reinstate one of its employees, Mr Symes, after he swore at his boss. The case is useful in demonstrating Fair Work Australia’s considerations in determining whether a dismissal is justified.

Facts

Mr Symes was a long-term employee at Armaguard, who had worked his way up to the position of a crew leader. His duties included transporting cash to and from clients’ premises and servicing ATMs. After suffering a workplace injury, he was effectively demoted and placed on light duties pending his full recovery. He was informed that, due to the amount of time it was taking Mr Symes to do his runs he would remain in this position until his performance improved.

At one of Armaguard’s regular monthly staff meetings, Mr Symes was informed that he had been allocated a vehicle with a faulty indicator. Frustrated and angry that this would cause delay in his work duties, Mr Symes told his supervisor, Mr Hala, to “get f---ed” and stormed out of the room, despite requests for him to “come back and sit down”. Mr Hala approached Mr Symes later in the lunchroom and a heated exchange occurred. Mr Symes complained about the “f---ing roster” and caused damage to the notice board after hitting it with some force.

After reflecting on the incident and feeling disappointed by his actions, Mr Symes telephoned Mr Hala and apologised, and also wrote a formal letter of apology. Despite this, Mr Symes was dismissed without notice the following day.

Findings

Mr Symes relied on section 385 of the Fair Work Act 2009 (Cth) (“the Act”) which provides that a person has been unfairly dismissed where the dismissal is “harsh, unjust or unreasonable”. 

The Commissioner examined whether there was a valid reason for the dismissal pursuant to the Act. Armaguard submitted that Mr Symes’ alleged misconduct amounted to a valid reason on the grounds that Mr Symes:

1. failed to comply with a lawful and reasonable direction when he left his staff meeting early and refused to return upon Mr Hala’s request;
2. swore at Mr Hala in an aggressive manner; and
3. used inappropriate physical violence in a disproportionate response when he hit the notice board.

The Commissioner ruled that although Mr Symes’ behaviour did amount to misconduct, his dismissal on the above grounds was indeed harsh and excessive in the circumstances, and some other form of disciplinary action would have been sufficient. The Commissioner found that:

1. Although Mr Symes did not comply with the request of Mr Hala, the request did not amount to a “direction” in the legal sense of the word. The Commissioner considered the request a warning rather than an order or command.
2. Although Mr Symes’ use of foul language was completely “inappropriate and unwarranted”, it was submitted that Armaguard’s workplace was an environment in which bad language was regularly used and accepted. Although Armaguard had a policy in place that swearing in the workplace was not tolerated, it conceded that employees may have received “mixed messages” about the use of foul language.
3. Although physical violence in the workplace is not acceptable, hitting an inanimate object such as a notice board is in a different category of behaviour to violence towards a person.
4. Mr Symes was dismissed the day after the incident and was not given a reasonable opportunity to respond to the reasons for his dismissal. Furthermore, Mr Hala, played an active role in effecting Mr Symes’ dismissal, despite Armaguard being a large company with its own human resources management specialists. The Commissioner commented that the process had “the appearance of procedural unfairness”, reinforcing the claim that the dismissal was harsh.
5. Mr Symes’ apology to Mr Hala demonstrated his remorse and regret for his actions.  Reinstatement in this case was an appropriate remedy. The Commissioner balanced Mr Symes’ “one instance of an inappropriate set of behaviours” against eleven years of unblemished service.

The Commissioner ordered Mr Symes’ reinstatement without pay for the period between his dismissal and his reinstatement.

Lessons

Whether or not an employee’s dismissal is warranted will depend on all the circumstances of the case and will turn on its unique facts. Although it is commonly accepted that swearing at your boss is bad form, dismissal on that basis may be considered equally inappropriate in the circumstances, particularly where the employer has allowed the development of a robust work culture in which its employees swear regularly. 

If you feel that you have been unfairly dismissed, RKL may be able to assist you in an unfair dismissal claim.

This article is intended to provide general information only and is not a substitute for legal advice. To obtain legal advice tailored to your situation, please contact RKL on (03) 9519 9888.