Dismissal for scab-calling unfair

In brief

The Full Bench of the FWC decided that an employer's decision to summarily dismiss an employee for calling another worker a 'f***ing scab' during protracted industrial disputation was unfair.¹ Senior Associate Tarsha Gavin reports.

How does it affect you?

• This decision reinforces the FWC's willingness to consider a range of other factors when assessing whether a dismissal is harsh.
• Relevant factors can include: the employee's prior disciplinary record; whether other employees engaging in similar conduct have also been dismissed; and the personal impact of the dismissal on the employee.

Background

Mr Gelagotis and Mr Hatwell were employees of Esso Australia Pty Ltd. Following a change in maintenance contractors at Esso's Longford site, former contractors were offered employment with the new contractor (UGL) on less favourable terms. A period of protracted industrial disputation followed, during which the relevant unions formed a protest line outside the Longford site. UGL employees (who had accepted the employment offers) who drove past the line on their way to and from work were called various derogatory terms, including 'scab'.

During this period, Esso summarily dismissed Mr Gelagotis and Mr Hatwell for engaging in behaviour that was harassing, intimidating or bullying in nature. Mr Gelagiotis had instigated the removal of a UGL contractor from the Esso lunchroom because he had accepted UGL's employment offer. Mr Hatwell had called a UGL employee a 'f***ing scab'. The use of this language contravened Esso's harassment policy.

At first instance, the FWC held that both Mr Gelagotis and Mr Hatwell were not unfairly dismissed, as their conduct constituted a valid reason for dismissal, and there were no factors that rendered that decision harsh, unjust or unreasonable.

The decision

Mr Gelagotis and Mr Hatwell sought permission to appeal from the Full Bench of the FWC.

Mr Gelagotis was denied permission to appeal. In relation to Mr Hatwell, despite agreeing with the Deputy President's finding that there was a valid reason for dismissal, the Full Bench determined there was an appellable error, as the evidence before the Deputy President was 'so clearly in favour of a finding that the dismissal was harsh'. In reaching this conclusion, the Full Bench had regard to the following factors:

• there had been only a single contravention of Esso's harassment policy;
• the Esso representative responsible for determining the disciplinary outcome for Mr Hatwell had given evidence that she would not have dismissed an employee for a single use of the word 'scab';
• there was evidence that two other Esso employees who had used language like 'scab' and 'grub' had only received first and final warnings;
• Mr Hatwell had an unblemished disciplinary record during his 10 years of employment; and
• the investigation and dismissal had 'very significant effects' on Mr Hatwell and his family.

Mr Hatwell's appeal was upheld and the matter remitted to the Deputy President to determine a remedy.