Mr Benson worked for Airlite Windows Pty Ltd (Airlite) for 9 months before being summarily terminated for “harassment behaviour towards other fellow employees”. On arriving at work one day Mr Benson, in the course of parking his car immediately behind another vehicle, drove at speed towards Ms Hodge who was walking behind the parked vehicle. Ms Hodge gave evidence that she was intimidated by his conduct. Some minutes later as Ms Hodge was about to clock on, Mr Benson loudly and aggressively said words to the effect of “What’s going on here! Move!”. Ms Hodge moved out his way and Mr Benson effectively “jumped queue” to clock on. Later that morning Mr Benson made derogatory comments about Ms Hodge to colleagues. When Ms Hodge became aware of the comments she reported the totality of his conduct.

Airlite investigated the incidents and summarily terminated Mr Benson’s employment. He brought an unfair dismissal claim.

Senior Deputy President Cartwright of Fair Work Australia accepted that Mr Benson’s conduct was a problem in the workplace. His work was adequate, but not great, and in the course of his 9 months of employment at a site with 74 employees, he had already been moved once because of his inability to get along with his team leader, had upset Ms Hodge and had clashes with at least three other employees, all of whom were long serving and valued employees.

In considering whether Mr Benson’s conduct constituted a valid reason for termination, SDP Cartwright accepted that the impact of Mr Benson’s behaviour on the safety and welfare of other employees was a valid consideration. He also took into account Ms Hodge’s evidence that had the derogatory comments not been made, she would not have made a complaint. But ultimately SDP Cartwright said that he was unable to share Airlite’s view of the seriousness of the incidents. He considered that the conduct did not warrant summary termination or indeed termination at all. In his view the better course would have been to apply the Airlite disciplinary policy and issue a written warning.

Mr Benson had applied for reinstatement but SDP Cartwright did not consider it an appropriate remedy as he did not accept that Mr Benson would be able to work with the persons affected. This was particularly the case given Mr Benson denied wrongdoing and for the most part did not acknowledge his shortcomings. Mr Benson had found alternative employment within six weeks of his termination by Airlite and his economic loss was measured at just under 6 weeks. Given Mr Benson’s misconduct had contributed to Airlite’s decision to dismiss him, SDP Cartwright ordered compensation of 4 weeks in lieu of reinstatement.

SDP Cartwright’s decision is an important reminder to employers that summary dismissal is an option only available in circumstances when an employee engages in serious misconduct.

SDP Cartwright’s decision also highlights that not only may Fair Work Australia consider that summary dismissal was not warranted in the circumstances, it may also find that dismissal with notice would not have been warranted either. Decisions to terminate, either with or without notice, must be made carefully and should not be unduly influenced by an employee’s problematic history as distinct from the actual events giving rise to the potential termination.