|
|
Biffo in the Workplace - Oh What a Sinking Feeling |
Threat of Violence by Worker Fails to Justify Dismissal |
When does an employee's threats of violence justify dismissal? In Constantin Balica and Toyota Motor Corporation Australia Ltd (PR943758) 18 February 2004, the Australian Industrial Relations Commission (AIRC) considered that very question. Despite a worrisome outcome, the case provides a useful step-by-step procedure for companies determining whether or not to terminate an employee. |
Mr. Balica was employed by Toyota as a Team Member in the body shop. Evidence showed that workers on the body shop production line had a practice of name-calling and practical jokes between one another. Toyota actively discouraged the practice, but it continued. |
Mr. Balica had been both an instigator and a recipient of the practice. Over 10 years with Toyota, Mr. Balica had received recent written warnings for the following actions:
1. In 1999, for "aggressively" pushing another employee;
2. In 2002, for tampering with company equipment; and,
3. In 2003, for calling another employee a "monkey".
|
| In late September 2003, Mr. Yamak turned off the microwave oven when Mr. Balica was trying to heat his lunch. Mr. Yamak admitted doing this on one prior occasion. Mr. Balica became upset, went to his workstation and picked up a hammer. Mr. Yamak gave evidence that Mr. Balica held the hammer above his head, gesticulated, spat in his face, struck him with his knee and verbally abused Mr. Yamak in Romanian for approximately one minute. |
After an investigation, Toyota terminated Mr. Balica's employment. Mr. Balica filed a notice of intention to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable. |
Toyota provided evidence that it had regularly given advice to its employees regarding:
- unacceptable behavior (including threats of physical violence);
- how to respond to unacceptable behavior; and,
- the serious consequences for employees who breached Toyota's policy and standards in this area.
|
| Further, Mr. Balica acknowledged that he had seen documents, information sheets, and had received verbal advice relating to the proper behaviour of employees. |
The Commissioner began by taking into account that Mr. Balica appeared to have a limited ability to understand English. Also noted was the fact that Mr. Balica was 63 years old and 165 cms tall, whereas the other employee was 31 years old and approximately 185 cms tall. |
The Commissioner also made the following findings of fact:
1. That Mr. Balica raised the hammer, shouted in a threatening manner and was verbally abusive;
2. That there was insufficient evidence to support that Mr. Balica spat at Mr. Yamak;
3. That Mr. Balica's knee "came into contact with Mr. Balica's leg" but did not do so with force or intent to cause injury (and in fact did not cause injury).
|
As to the termination of Mr. Balica's employment, the Commissioner applied the provisions of the Workplace Relations Act 1996 (the "Act"), and found:
1. That Mr. Balica's actions were valid grounds for his employer to consider terminating his employment;
2. That Mr. Balica was advised of the offence; and,
3. That Mr. Balica was given an adequate opportunity to respond.
|
The Commissioner then proceeded to the question of whether Mr. Balica's termination could be considered as "harsh, unjust or unreasonable" as set forth in section 170CE(1)(a) of the Act. |
The Commissioner quoted the following language from another case, and noted that the 3 concepts in fact may overlap:
- Termination may be considered harsh because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
- Termination may be considered unjust where the employee was not guilty of the misconduct on which the employer acted; and/or
- Termination may be unreasonable because it was decided on inferences which would not reasonably be drawn from the material before the employer.
|
| The Commissioner stated that violence and threats of violence in the workplace should not be tolerated by an employer. However, not all instances of violence automatically justify the termination of an employee. |
The Commissioner concluded that the termination of Mr. Balica by Toyota was both harsh and unreasonable. The following reasons were given particular importance.
|
1. The employee's length of service with the company;
2. The employee's age and the near certainty that he would never work again if terminated;
3. The degree of provocation that occurred; and
4. The fact that no serious blow was struck by either man.
|
| The Commissioner suggested that a more appropriate penalty would have been suspension from the workplace without pay for several months and mandatory completion of an anger management course. Although reinstatement was suggested as an appropriate remedy, the Commissioner gave the parties an opportunity to agree on the relief, rather than making an order. |
The Commissioner also indicated that "any further serious breach" by the employee would provide a basis for termination with "virtually no chance of success" through utilizing the provisions under the Workplace Relations Act. |
Constantin Balica and Toyota Motor Corporation Australia Ltd (U2003/6420) PR943758 18 February 2004 |
Peter McNamara |
peter.mcnamara@cml.com.au
|
