Violence is a crime and in the workplace is clearly outline in the law as serious misconduct, for which summary (instant) dismissal is available.  A recent case has highlighted however, that even when a worker strikes a customer over the back of the head, the dismissal can be ruled to be unfair due to inadequate process.

Case Review

The disability worker was terminated following an incident where, having restrained the customer with the help of a colleague after the customers aggressive conduct,  he called the customer a “f**king little c**t” and then deliberately struck the customer in the back of the head with his knee two or three times, causing the customer to swell, bruise and for blood to come out his ear.

The worker denied the knees to the head were deliberate and that he was just defending himself, which he is allowed to do with violent customers.  The employer agreed that initially the worker defended himself appropriately, however the actions once the customer was restrained were unjustified and thus terminated his employment for breaching the businesses Abuse, Neglect and Exploitation policy.

The worker lodged an unfair dismissal claim.

In considering the case the Deputy President noted that there was a valid reason for termination and that the workers actions were ‘repugnant to the employment relationship’, but determined that the dismissal was unfair on the basis of the process followed.

The worker argued that the manager breached procedural fairness because he did not advise the worker that he had the right, according to the businesses own policies, to have a final decision reviewed by the managing director before any termination took effect.

The Deputy President agreed and awarded the worker $7,167 compensation.

 Learnings for all businesses

“The big take home here is that termination for even the most heinous activities at work, such as the assault of a vulnerable customer, can result in an unfair dismissal and the compensation of an employee if the process for fair performance management is not followed prior to termination”. explains ACAPMAs Elisha Radwanowski.

“In this case that process for fair performance management went beyond best practice to include the process that the business had established itself.  A business policy that the manager was not aware of, that was over and above best practice, was not complied with and so the dismissal was found to be unfair”, continued Elisha.

“Bottom line is that the business must follow procedural fairness, including those additional elements it has committed to in contracts and policies and agreements, or the dismissal will be unfair, even if the reason for dismissal is valid”, concluded Elisha.

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HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by emailing  its free for members.

ACAPMA membership is affordable at only $810 per year for a single site and valuable with sites gaining HR and IR advice support and representation in unfair dismissal matters as well as a raft of other benefits and discounts see; for more information.

Elisha Radwanowski BCom(HRM & IR)