Employee assaulting colleague supports termination of employment

24 March 2021

In issue

  • The issue in this case is about whether there is a relevant nexus between an employee’s conduct outside work hours and the employee’s employment to justify the dismissal.

The background

Retail Staff Pty Ltd (Retail Staff) provides labour hire workers to its clients on a temporary basis. One of its clients provides car-cleaning services, dog washing services and a cafe. Ms Nakamura had been working at this organisation for approximately two and a half years on a casual basis while employed by Retail Staff.

There was an altercation between Ms Nakamura and a co-worker, Mr D, in June 2020 after Ms Nakamura’s shift had ended. Mr D was on his work break. The altercation arose when Ms Nakamura and Mr D were talking about a mutual friend, Ms T, who Mr D had previously dated. Ms Nakamura was explaining to Mr D that Ms T had been sexually assaulted. Mr D did not believe the situation.

Ms Nakamura alleged Mr D had provoked her during the conversation about Ms T causing her to punch Mr D in the face. Mr D reported this to his supervisor on the shift at the time. This was not reported to Retail Staff until July 2020. Ms Nakamura asserted the assault was not a workplace incident because it occurred outside her working hours, despite still wearing the work uniform.

Ms Nakamura later sent Mr D a threatening message about him not believing Ms T had been sexually assaulted. Ms Nakamura also posted on her Facebook page about Ms T attempting suicide. Mr D later reported this to Retail Staff.

Retail Staff’s operation manager conducted an investigation. Ms Nakamura admitted to punching Mr D. The investigation included speaking with Ms Nakamura and Mr D and gathering witness statements. Retail Staff decided to terminate Ms Nakamura’s employment because the conduct was in breach of the company’s Work, Health and Safety and the conduct occurred during work.

Ms Nakamura submitted she was unfairly dismissed because there was no valid reason, as she had a minor brief argument and threw a punch without hitting Mr D. She also raised that the investigation procedure was not fair, that Retail Staff assisted Mr D in drafting this complaint and did not interview Mr D in person, or consult with Mr D’s supervisor of the shift at the time of the incident.

The decision

Commissioner Hunt found Ms Nakamura did punch Mr D in the face, and because of Ms Nakamura’s action, it was likely to cause damage to the relationship between the employer and employee. If Ms Nakamura had injured Mr D, Mr D would likely be able to receive workers compensation.

“Employees cannot simply go around striking their colleagues when they are angry with the position taken by the colleague, whether it is a value-based matter or not…Ms Nakamura was the one who approached Mr D, while he was still working, albeit on a break. She did not do so after they had both finished work”

Commissioner Hunt found there was a sufficient nexus between Ms Nakamura’s conduct, despite it being outside working hours, and her employment to warrant her dismissal.

Commissioner Hunt considered factors which may find the dismissal harsh including Ms Nakamura’s length of service and work eligibility, Ms Nakamura’s good employment record, Retail Staff’s operation manager assisting Mr D in writing his complaint, Retail Staff’s failure to put to Ms Nakamura the disturbing messages she sent to Mr D. These factors had to be weighed up against the seriousness of the reason why Ms Nakamura was dismissed. The dismissal of Ms Nakamura was not harsh, unjust or unreasonable. In other words, she was not unfairly dismissed.

Implications for you

This decision is an important reminder for employers or organisations engaging in investigations to ensure a fair procedure is followed where all possible witnesses are interviewed and evidence relating to the investigation that may affect the decision-making is put to the employee being investigated.

The investigator should be impartial and should not intervene in the investigatory process, such as assisting the victim in drafting the complaint. This will provide transparency in the decision-making process and procedural fairness.

Finally employers should not be afraid to take bold action in response to conduct which significantly departs from their expected standards and causes a risk to health and safety.

Nakamura v Retail Staff Pty Ltd [2021] FWC 1396

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