Fisticuffs, the sack and legal action after homophobic remarks – mediate before it’s too late

An employer has had an expensive and time-consuming trip to the Fair Work Commission after sacking two fighting employees.

The FWC ordered the supermarket chain to reinstate one employee after finding flaws in its workplace investigation.


The employee in question had been employed by a supermarket chain for his whole working life. After 18 years of incident-free service, problems with a co-worker came to a head in October 2013 when a fight broke out during a shift at the company’s Distribution Centre.

This was triggered by fake crying gestures and homophobic remarks (“your boyfriend’s not here to help you”), taken to relate to his sister-in-law’s recent death and the recent departure of a long-term colleague.

When the employee approached the instigator to ask what his problem was, he was rushed by the co-worker who began gesturing and yelling at him. The employee pushed the co-worker in the chest and then began to grapple with him.

Both men fell to the ground and the employee was set-upon, receiving two blows to the head.

The employee immediately reported the incident to management and both employees were stood down while an HR investigation took place. The employer held multiple meetings with both employees as well as interviewing a number of witnesses.

The employer felt justified in its dismissal of both employees for serious misconduct and for breaching its workplace code of conduct prohibiting fighting.

Although the FWC recognised that the employer had a valid reason for the employee’s dismissal, it considered the following matters should have been relevant to the employer’s decision about an appropriate disciplinary sanction:

• The employee’s 18 year unblemished work record
• Without verbal provocation from the co-worker the incident would have not occurred
• The employee’s behaviour was confined to pushing and grappling (did not throw a punch)
• The employee immediately reported incident to management
• The consequences of dismissal would have been financially and emotionally severe upon the employee.

Despite an otherwise valid reason, by failing to take into consideration all the relevant circumstances, the employee’s dismissal was considered harsh and therefore, unfair.

Even where a workplace investigation has seemingly ticked all of the procedural boxes, it is important not to forget to consider the employee’s relevant personal circumstances. In this case the employer’s inflexible application of its workplace standards without proper regard to other relevant factors brought its dismissal action undone.

iHR believes it is preferable to seek to mediate before a situation gets physical with subsequent disciplinary action, with the time and monetary cost this involves.

Workplace mediation is a dispute resolution technique used to assist parties to resolve issues and achieve an ongoing workable relationship. Mediation is a confidential and structured process in which an independent and impartial third party facilitates discussion between the various individuals involved. Mediation is more cost effective and a less time consuming process than formal proceedings and in many cases can resolve disputes before parties feel the need to consider litigation. The process is confidential and limited to the immediate parties involved and therefore limits involvement and disruption to the wider workgroup. Successful mediation can enhance and assist your organisation to stabilise ongoing internal and external working relationships and achieve better outcomes for parties involved.


Recent articles

Balance of probailities

Understanding Balance of Probabilities in Workplace Investigations

Author - John Boardman, Director Workplace Relations The more serious the allegation, the more serious consideration should be given by...
Remote or isolated work

The impact of poor support on remote and isolated workers: Summary of the webinar

Remote and isolated work encompasses more than just working in a home setting; it taps into the narrative of employees...
Reasonable management.

What isn’t Workplace Bullying? Reasonable Management.

Article updated on 15 April 2024 [Originally published in 2017] Workplace bullying is an organisational problem. It can happen in...
Trauma informed investigations

Trauma-informed workplace investigations: Prioritising ‘care’ over rigid processes

Interviewee: Kirsten Hartmann, Senior Workplace Relations Adviser/Workplace Investigator In August 2023, the Australian Human Rights Commission (AHRC) released four guiding...