In the recent decision of Browne v Coles Group Supply Chain Pty Limited [2014] FWC 3670, the Fair Work Commission reinstated a employee who been dismissed for initiating a fight with a colleague whilst at work. In his decision, Vice President Hatcher determined that initiating the fight constituted a valid reason for dismissal, but that the dismissal was harsh because it was disproportionate to the conduct when having regard to the employee’s 18 years’ of service and previous good record of service. The decision may be of particular concerns to employers, as it suggests that workplace violence may not automatically give rise to a valid and defensible basis for dismissal. This may be the case even if the employer has a zero-tolerance policy to workplace violence, and/or it conducts a thorough investigation of the violent incident whilst affording the employee procedural fairness throughout.

This decision also illustrates the evolving approach industrial tribunals have taken to determining employment and dismissal claims involving employee violence. In the past, dismissals involving employee violence have frequently been upheld by the industrial tribunals (such as the Fair Work Commission), irrespective of extenuating circumstances or the impact of the dismissal on the employee. In the article “No Fighting on the Job” – but what of the Fight for Reinstatement. Peter Punch provides some more thoughts on the decision, as well as the evolution of industrial tribunals’ attitudes when dealing with dismissal claims involving workplace violence.