This FWC decision is a good reminder that ‘harshness’ will be considered in matters of dismissal, as will an employee’s track record.

If an employee made threats to cut another employee’s throat, you might think that would be a cut-and-dried act of misconduct that most likely warrants dismissal.

In this instance, the situation wasn’t so black and white.

The Fair Work Commission recently ordered an employer, an open-cut mine operating in NSW, to reinstate a mine worker who was let go following “aggressive behaviour” towards a colleague. The FWC found that his dismissal was harsh on account of his unblemished record over a 12-year tenure, his personal situation and mental health challenges.

However, Deputy President Saunders refused to award back pay to the employee, deeming his months of lost wages, amounting to $26,000, to be fair punishment for his misconduct.

“By and large, the employer has done the right thing,” says Michael Byrnes, Partner at employment law firm Swaab. “The Commission isn’t condoning the behaviour. Nevertheless, it found that the termination of the employment was considered harsh due to the impact it could have on the employee.”

More on that in a moment.

What happened?

In August 2022, the employee in question was tasked with cleaning his drill at the end of his shift, and claims he was provoked by a colleague who was just about to start his shift and use the equipment the employee had just finished with.

The colleague said, “I bet your drill will be dirty… he doesn’t know how to clean the drill rig.” The colleague went on to make further comments, such as “f*ck off back to trucks” (the employee had recently moved up from operating the mine’s dump trucks). He also claimed that his colleague had previously called him names, such as a liar, fat and lazy, but this was never substantiated in front of the Commission.

Upset and feeling provoked, the employee is then said to have walked towards his colleague until their stomachs were touching and said, “What are you going to do about it?” And then, to his supervisor, he said, “If this bloke says to go back to the trucks once more time, I will cut his throat”.

Mitigating factors 

With the colleague claiming he feared for his safety, the employee who made the throat-cutting threat was terminated on 7 September 2022.

However, in his decision earlier this year, Deputy President Saudners found that the termination was harsh.

“The concept of ‘harshness’ can create some real complexity for employers when managing [dismissal] risks,” says Byrnes. “You can have a situation like this where there is a valid reason for termination and you’ve afforded procedural fairness, yet the dismissal is still found to be harsh.”

In this case, the following factors contributed to the FWC’s decision that the dismissal was harsh:

• This was an isolated incident (he’d had an unblemished record for 12 years).
• His service in the Australian Defence Force left him with post-traumatic stress disorder (PTSD), depression, anxiety and anger management issues, which he was seeking professional support to manage.
• In his most recent performance appraisal, he was told, “I wish I had a crew of [people like you].”
• The employee was remorseful for his behaviour. 
• His age (50) meant it would be harder for him to find work with a similar salary.
• His personal finances would be impacted (he has two children to support and his wife earns “considerably less” than him). They also have two home loans to pay back.

While Byrnes agrees with most of these points, on the latter he says, “I don’t know how employers are supposed to know [if someone has multiple mortgages]. In fact, some might say that if you owned two properties, even with mortgages, that’s not necessarily something that should weigh in your favour. Nevertheless, that’s something that was specifically noted in the decision.”

“Employers need to be careful about being moral guardians, or feeling that every transgression warrants termination. Sometimes a first and final warning will suffice.” – Michael Byrnes, Partner, Swaab.

Byrnes also notes that these determinations can be even more complex because they “take into account matters that would normally give rise to discrimination“.

“Does that mean, for instance, that if someone doesn’t have a family or isn’t married that they might be more likely to have their employee terminated given the same set of circumstances? It’s a vexed issue,” he says.

Saunders made a point of saying that while these factors didn’t excuse the employee’s behaviour, they did explain them. The employee was also put on notice; if any further incidents occurred in the future, the employee wouldn’t be looked upon so kindly.

Lessons for HR

You could argue that anyone who loses their employment is impacted personally, financially and/or mentally in some capacity, but Byrnes says it’s important to note that it’s a matter of the degree of the harshness.

“Some employees, if they have their employment terminated, are very likely to be able to rebound and find another job with comparable remuneration in a few weeks. They might work in a sector of the economy that’s hot in demand.”

However, termination should always be considered the absolute last resort, he adds.

“That’s the approach the Commission is going to take,” he says.

If you are faced with similar instances of misconduct, Byrnes suggests asking yourself the following question: “Does this behaviour make the continued employment of this person untenable?’

“That is a question that decision-makers need to pose to themselves and reflect upon because employers need to be careful about being moral guardians, or feeling that every transgression warrants termination. Sometimes a first and final warning will suffice.”

Another way to reduce the risks of a termination being deemed harsh is to involve the employee in determining an appropriate response for the employer to take, says Byrnes.

“This conversation may well give rise to some of the factors which the Commission might consider later on [when determining harshness].”

For example, you might learn that the employee is in personal debt or suffering from a mental health disorder.

While measuring harshness always needs to happen on a case-by-case basis, Byrnes says there are a few things HR professionals and employers should consider before termination.

1. Is this an isolated event? 

“An unblemished record is something employers should always take into account,” says Byrnes

“You need to be really careful when dismissing employers with a really long tenure. Those are the sort of circumstances where even if the employer has done everything right, the Commission might come along and find the dismissal to be harsh.”

2. Are they a good performer/contributor? 

“Indeed, in this instance, the worker’s performance had been praised by a manager prior to this incident.”

Information such as this could work against you when faced with the Commission.

3. Do they have a pre-existing mental health condition?

“This can be difficult for employers because they might not always know about these things.”

This is why it’s important to have a culture of psychological safety and openness around mental health and wellbeing. Of course, this isn’t an overnight fix, but it’s something to work towards.

4. Would they be able to find alternative employment? 

This means considering the employees age, personal circumstances and skill set.

If you determine that there are likely enough factors to weigh in the employee’s favour, consider offering them a warning instead.

“In the right circumstances, you might consider giving that employee a lifeline by reinstating them and giving them a second chance,” says Byrnes. “Make it clear that if the employee transgresses again, their employment will likely be terminated for good.”