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Punched co-worker in the face: dismissal not unfair

Considering she’d punched a co-worker in the face, dismissal was not unfair.
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Punched co-worker in the face: dismissal not unfair

Punched co-worker in the face: dismissal not unfair

14 May 2021

Considering she’d punched a co-worker in the face, a woman’s dismissal was not unfair, a commission has found. The assault occurred after the woman had finished her shift and the co-worker was on his break. She was angry with him for not believing that a mutual friend had been raped at work the previous day by a member of the public.

Altercation between colleagues

The woman was a labour-hire worker employed on a casual basis as a car detailer supervisor/car wash attendant at a Gold Coast business that provided car cleaning services, dog washing bays and had an onsite café.

When walking to her car after finishing work on 24 June 2020, she spotted a co-worker and they began talking. An argument erupted regarding their mutual friend, whom the co-worker had dated some months earlier.

A physical altercation ensued. The man said in his statement that she’d started yelling at him and pushed him hard, then punched him in the face. He was shocked and grabbed her arms to stop her from doing anything further. He then walked away and told the site manager.

He said that though he wasn’t badly hurt, he was very angry and it was humiliating to be hit at work. He was in ‘complete shock’. No one else witnessed the incident but another worker who was not far away would have heard her ‘getting completely worked up’ at him.

Two weeks after reporting the incident to the site manager, he began to feel that no one at the workplace was following up on his complaint so he informed his employer’s operations manager.

The labour-hire company’s operations manager phoned the woman, who confirmed that she had struck her co-worker. In a subsequent email, the woman was asked to attend a meeting the following morning to discuss the incident, which was a breach of workplace health and safety. She was told she could bring a support person with her to the meeting, as it might lead to disciplinary action.

At the meeting, she failed to provide any further information. The labour-hire business terminated her employment that afternoon, as it considered her actions serious misconduct warranting summary dismissal.

The woman applied to the Fair Work Commission seeking reinstatement. She argued her sacking was unfair because the incident happened out of work hours and outside the workplace perimeter, meaning that it could not be a workplace incident.

The FWC’s view of the assault

In her evidence, the woman stated that the man had provoked her and made her angry, which led her to approach him. She said she tried to push him, but he grabbed her arms firmly. She said she tried to shake him off and ‘it was like punching him, but she did not actually punch him’.

She submitted images showing where the incident occurred, which was on a footpath between the road and the workplace, partly on the footpath and partly on the road. She stated that as she was standing on the road and he was standing on the kerb, he would be about 190cm tall while she is 165cm tall, so it would not have been possible for her to have punched his head or face. She denied having admitted to the operations manager that she’d hit him.

She acknowledged that she had tried to contact him later via an app, wanting him to apologise for not believing the mutual friend’s allegation. He repeatedly told her that he required evidence, or she should go to the police to report the allegation.

The employer took the view that they simply could not allow an employee in the workplace who thought it was acceptable to act violently towards another employee. If the co-worker had been injured as a result of the assault, the company would have had a sizable workers compensation claim to contend with.

After considering the evidence, the commissioner had no doubt whatsoever that the woman had punched her co-worker in the face. Her reasons for doing so were clear and they were ‘astonishing and unacceptable’.

The commission found that there was a valid reason for her dismissal, nor was it harsh, disproportionate or unreasonable. It therefore rejected her application.

The bottom line: Physically assaulting a colleague at work is serious misconduct.

Read the judgment

Nakamura v Retail Staff Pty Ltd [2021] FWC 1396 (15 March 2020)

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