Abrasive Jokes not Enough to Justify Termination
Friday 22 January 2016 @ 10.29 a.m. | Industrial Law
The Fair Work Commission has ruled in favour of a former employee of a global logistics business and awarded her $21,000 for her unfair dismissal. Melanie Davidson was dismissed by her employer, Visa Global Logistic, for allegedly telling a co-worker to “go and punch Stacey in the face.”
Background
Davidson had been working for Visa Global Logistics since 2007 and was fired in 2015 after a telephone conversation that took place a week before her dismissal. During the conversation, she had made the aforementioned statement to a co-worker. Her employer dismissed her following the incident and also referred to another incident in which she raised her voice and swore at another staff member. The matter was taken to the Fair Work Commission and, under cross examination, Davidson admitted to calling the employee a “fucking cunt” during the argument in February.
Fair Work Commission
Visa Global Logistics argued her behaviour was inappropriate and amounted to harassment. They provided to the FWC that Davidson had been afforded procedural fairness by warning her ‘numerous times, formally and informally’ about her inappropriate conduct.
Davidson argued that the comments she had made during the telephone conversation were meant as a joke and had been taken out of context. Commissioner Jeff Lawrence found in favour of Davidson accepting that her comment regarding Stacey was meant as a joke. He explained that while the comment may have been misunderstood, it nevertheless was not spoken to the employee concerned. Commissioner Lawrence said:
“It is clear that there was no threat of violence or act of intimidating behaviour to the employer or another employee…The applicant had never met Stacey … In summary, I find that there was not a valid reason for dismissal.”
The case illustrates that when an employee is terminated, it must be made on a sound and reasonable conclusion of serious misconduct. The Commissioner further found that previous warnings given by the employer against Davidson’s use of foul language was not enough to amount to termination.
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