What happens when a personal dispute bleeds into the workplace? And can HR act before it comes to fisticuffs?
The Fair Work Commission has upheld the sacking of an employee after she punched her coworker in the face over an alleged personal dispute.
The employee, who was a student visa holder, argued her dismissal was unfair because the altercation was the result of a “personal dispute” she had with the coworker over his treatment of his ex-partner, who was also her friend.
As our work and private lives continue to blend together, it shouldn’t be a surprise that our personal disputes might spill over into the workplace from time to time. However, Commissioner Jennifer Hunt said, “Employees cannot simply go around striking their colleagues when they are angry with the position taken by the colleague, whether it is a value-based matter or not.”
While it’s nice when employees become close friends – strong friendships between colleagues can actually make them better workers – what happens if those relationships break down? Well, sometimes it means an employee punches their colleague and feels they should be able to get away with it. How can HR prevent such a thing from occurring?
When a personal dispute reaches boiling point
To understand why the employee punched her coworker, we need to briefly delve into their personal lives.
A month before the altercation, the coworker who was punched broke up with his partner who was a close friend of the visa holder.
One the day of the punch, the visa holder approached her coworker to argue with him about his response to his ex-partners allegations that she had been sexually assaulted the day before. According to the FWC records and a Facebook post from the visa holder, the coworker told her to alert the police.
However, the visa holder wasn’t happy with this response, with her Facebook post stating “She talked about it to her friend, who is ex-boyfriend, because she wanted him to help her broken heart.
“But he didn’t believe that happened [to] her. He told her ‘show me a proof or call cops’. She really got a shock and her heart has completely broken.”
This is what prompted the punch to the face. The coworker immediately reported the incident to his supervisor. However, after he didn’t hear back he escalated the issue to the operations manager.
When the employer confronted the visa holder, she did not deny the incident and was summarily dismissed as a result. She later published a goodbye post on a staff messaging board, again, admitting to hitting her coworker.
It read: “I’m so sorry guys, I cannot work with you guys anymore. Couple weeks ago, I hit [the co-worker] because he insulted my friend. He said a lot of … bad things”.
After her dismissal, the visa holder took the matter to the FWC claiming reinstatement, back pay and compensation as she believed her dismissal was unfair as the matter was a personal dispute and, in her mind, occurred outside of work (as he was on a break and she was clocked off).
Her employer argued the termination was justified as they had no reason to believe a similar incident might not happen again. The employee claims she apologised to her coworker and they had spent time together post-altercation.
Not a personal matter
In this case, the visa holder’s argument hinged on the idea that the whole incident was unrelated to work. But Aaron Goonrey, partner at law firm Lander & Rogers, explains that altercations between employees, even if they’re outside of work, can have consequences in the workplace.
“There’s a case called Rose v Telstra which set the precedent on when out of hours conduct could lead to a valid termination,” says Goonrey.
In Rose v Telstra, deputy president Iain Ross stated the circumstances need to meet the following requirements to result in a dismissal:
- the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.
“So an employer needs to go through and look at these factors before jumping to termination.
“If an altercation happened off site, with a third party or someone completely unrelated to the organisation, then the employer may have a harder time arguing that it damaged their interests,” he says.
Another interesting aspect of the punching case was that the visa holder claimed there was no further issue between the two colleagues and they could work together without any bad blood between them.
Goonrey says even if employees offer to kiss and make-up that doesn’t mean an employer doesn’t have an obligation to investigate and act on allegations of violence.
“It can become an issue of workplace health and safety. If you have an employee who claims to have been attacked by another employee, it could be reasonable to assume there may be issues down the line.
“If an investigation finds the claims are substantiated, then you may have to say to the employee, ‘You pose a risk to the health and safety of others, so we’re going to exercise the right to bring your employment to an end.’”
Violence at work
Goonrey offers following advice to respond to altercations between employees:
- Intervene using calm and considered communication, both verbal and non-verbal.
- Ask the perpetrator to leave the premises.
- Offer any assistance the victim may need and allow them to leave for the day.
- If the incident is particularly serious, a duress alarm may need to be activated or the relevant emergency services contacted.
- Follow your emergency response plan.
Goonrey says an emergency response process should cover any types of violence an employee may face at work – whether it be physical or verbal, in person or over the phone or web. It’s important to note that an emergency response plan will differ from organisation to organisation.
“The devil is in the detail. I’ve seen emergency response plans done as a traffic light system.
“Red being very serious it needs to be escalated to the whole Emergency Response Team. Orange where it’s only escalated to a certain group within the team. And green, where those involved can deal with the issue itself.”
If you’re looking for advice on how to build an emergency response plan, SafeWork Australia has a comprehensive fact sheet.
If you ever end up in front of the FWC, you want to make sure your workplace investigation skills are up to scratch. Check out AHRI’s short course if you need a refresher.