On 27 January 2021, the Fair Work Commission (FWC) handed down its decision in Jacob Battle v Macleay Options Inc [2021] FWC 237. The FWC considered whether the termination of the Applicant’s employment with the Respondent, Macleay Options, amounted to unfair dismissal considering the lack of procedural fairness afforded to the Applicant, Mr Jacob Battle, prior to the termination.

To summarise, Macleay Options terminated Mr Battle’s employment following a series of events that took place on 2 September 2020. This included a number of reports of misconduct by Mr Battle, including:

1. calling another employee of Macleay Options a “lazy cunt”;
2. removing his shirt and saying to another employee “let’s have a go”, and throwing a chair and a blower, demonstrating that he wanted the altercation with that employee to escalate into a physical fight; and
3. calling other employees of Macleay Options “cunts, dogs and smart arses” and punching a downpipe.

This conduct occurred within less than one month of Mr Battle having received a verbal warning in relation to:

• his attendance at work;
• his conduct of having told the Operations Manager he “can suck his dick”; and
• his inappropriate behaviour towards other employees.

In reaching its decision, the FWC first considered whether Macleay Options had a valid reason for terminating Mr Battle’s employment.  The FWC noted that Mr Battle’s conduct in calling another employee a “lazy cunt” was utterly inappropriate and continues to negatively affect that employee. “This is not a case of simply swearing at work; Mr Battle’s words were directed at [the other employee] and harshly denigrated him”.  The FWC noted that the conduct referred to at points 2 and 3 above were inappropriate in any workplace and were disrespectful and threatening towards other employees.  Further, given the verbal warning issued by Macleay Options only one month prior, Mr Battle was well aware that his conduct was inappropriate and would not be tolerated.  As a result, the FWC was satisfied that Macleay Options had a valid reason to terminate Mr Battle’s employment.

However, the FWC did not consider that Macleay Options had notified Mr Battle of the reasons for his dismissal or provide him with an opportunity to respond to those reasons before making a decision to terminate his employment.  While Macleay Options attempted to call Mr Battle, he did not pick up the phone.  Following that, Macleay Options decided to send Mr Battle a text message and an email informing him that Macleay Options had decided to terminate his employment and outlined the reasons for his dismissal.  Mr Battle was not given the opportunity to respond to the allegations of misconduct before Macleay Options decided to terminate his employment. While Macleay Options gave evidence stating that it “did not want to get into a conversation over it” and it “knew it would not go smoothly”, the FWC held this was not an acceptable reason for failing to notify and provide an employee with an opportunity to respond to such serious allegations, resulting in the termination of employment.  The FWC noted this error in the termination process supported Mr Battle’s contention that the dismissal was unfair.  The process undertaken by Macleay Options was “rushed and inept”.

Nevertheless, the FWC was satisfied that the deficiencies in the process followed by Macleay Options would not have made any difference to the outcome in this case. The FWC noted that “although the termination of Mr Battle’s employment was bereft of procedural fairness, the weight to be attributed to that matter is less than would have been the case had the procedural unfairness given rise to a real likelihood of a different outcome”.

The FWC held that Mr Battle’s repeated misconduct outweighed the shortcomings in Macleay Options’ termination process.  Therefore, the FWC held that the dismissal was not harsh, unjust or unreasonable and dismissed the Application.

If you would like more information about termination of employment processes, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice and assistance regarding managing termination of employment processes, including meeting any relevant consultation requirements and managing the risks of unfair dismissal matters please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or contact Ai Group Workplace Lawyers here.

Link to Monica Wilkie