Did you know that an employee telling you to “shove your f**king job up your a**e” in the heat of the moment may not be enough to warrant dismissal?

Two recent cases in the Fair Work Commission (FWC) have shed light on this:

  • In Hain v Ace Recycling Pty Ltd [2016] FWC 1690, Mr. Hain had a heated exchange about overtime payments with his boss, which ended with Mr. Hain calling his boss an “old c**t” and leaving work. Later that day, the boss dismissed Mr. Hain via text message. The FWC acknowledged that, while Mr. Hain’s comment provided a valid reason for dismissal, the procedural deficiencies (in failing to provide a warning, or giving Mr. Hain an opportunity to respond) rendered it unfair. Mr. Hain was therefore awarded AU$828 in compensation, taking into account new employment the day after his dismissal and deducting actual earnings over a five week period from those which he would have earned if not dismissed.
  • In Kazmar v Test-Rite Imports Australasia Pty Ltd T/A Medalist [2016] FWC 3008, Mr. Kazmar’s manager was explaining how to complete a task to the necessary standard when Mr. Kazmar responded in frustration “shove your roster up your a**e”. The manager interpreted the outburst to be a refusal to comply with a reasonable request and Mr. Kazmar was subsequently dismissed. The FWC however stated that “there have been a lot worse things said by an employee to an employer representative which have not led to dismissal” and, in that context, the frustrated outburst did not create a valid reason for dismissal. As a result, Mr. Kazmar was awarded AU$3,850 in compensation for the estimated three-month period he might have been retained if not for the outburst that led to his dismissal.

Accordingly, to mitigate the risk of an unfair dismissal claim, employers need to be careful to avoid any knee-jerk reactions and should instead take time to evaluate the whole of the circumstances to ensure an employee is afforded procedural fairness.