Sacked for saying she felt like knocking a co-worker off her perch

What happened

Carol Whitfield worked as a meat process worker for Primo Foods, a large smallgoods manufacturer, at its plant in Wacol, Queensland. She started on 15 October 2009 and by 2020 was a Level 6 machine operator on the bacon line.

Her job was to take piles of sliced bacon off a conveyor, weigh them into one-kilogram lots and send them on. She said two workers normally shared the task. On the morning of 9 July 2020 the scales at her co-worker's station went flat, and there were no replacement scales in the cupboard. While the co-worker was away, Ms Whitfield said, she tried to do both jobs. There were no plastic tubs to hold the overflow, and some bacon fell from the belt.

Ms Whitfield said the co-worker came back and yelled at her to pick it up. She called the leading hand over to complain. When the supervisors then spoke to her, she told them she was so angry she "felt like knocking her off her perch". The supervisor said that was a threat. The leading hand and the supervisor said she had gone further and said she would hit the co-worker, which she denied.

The investigation and the dismissal

Later that day human resources took a statement from her, suspended her with pay and gave her a show cause letter, a letter asking her to explain why she should not be dismissed. Her response was due by 11 am the next day. With her union's help she replied in time, denying any threat and explaining she was describing how she felt.

On 15 July 2020 she was dismissed for misconduct and paid five weeks in lieu of notice. The termination letter said the company had also considered her "relevant disciplinary history": a first and final warning from July 2019 for pulling loose plastic off a machine chain, which she disputed. She applied to the Fair Work Commission for an unfair dismissal remedy and asked to be reinstated.

Why: the legal test

Under s 385 of the Fair Work Act 2009 (Cth), a dismissal is unfair if it was "harsh, unjust or unreasonable". To decide that, the Commission works through the factors in s 387. The first is whether there was a valid reason related to the worker's conduct, meaning a reason that is "sound, defensible or well founded". The employer must prove the facts it relies on. The Commission also asks whether the worker was told of the reason and given a real chance to respond before the decision was made.

Commissioner Booth said the whole factual matrix had to be considered, including the employer's own role in what happened. Primo had not kept a backup scale, batteries or spare tubs on hand, even though scales running flat was not uncommon, and that caused significant stress to both workers.

What the Commission decided

The Commissioner preferred Ms Whitfield's account. The supervisors' typed statements were identical in places, and the handwritten notes did not include the more damning claim, found in both typed statements, that she said she wanted to "hit her in the head". She also found it unlikely that someone who had just called a supervisor over to complain would then threaten the person she was complaining about in front of that supervisor.

To knock someone off their perch, the Commissioner said, is a colloquial phrase about taking someone down a peg, and usually does not refer to actually hitting anyone. The remark was "inappropriate" and "intemperate" and unacceptable, but not a threat of violence. The supervisors had also sent both women back to work on the same line, which did not fit a genuine fear for anyone's safety. There was no valid reason for dismissal.

The process was also flawed. The show cause letter was "rather cursory", the earlier warning was raised only in the termination letter, and she had no further chance to respond before the decision. Given her nearly 11 years' service, the absence of other proven misconduct, the disputed earlier warning and her personal circumstances, the dismissal was also harsh.

The remedy

Primo argued it had lost trust and confidence in her. The Commissioner said a loss of trust and confidence must be "soundly and rationally based", and that difficulty or embarrassment in taking someone back is not enough. The two women had worked together only a few times. Primo was ordered to reinstate Ms Whitfield within 14 days, with continuity of service.

Because her remark was still unacceptable, the Commissioner limited the order for lost pay, taking into account the five weeks' pay in lieu of notice she had received when she was dismissed. The practical outcome, the Commissioner said, was that no further pay had to be paid to her under the order.

What this means for you

If you are accused of threatening a co-worker, the exact words and their context matter. An angry figure of speech is not automatically a threat, and the Commission will weigh how witness statements were prepared. If your employer relies on your past record, it should raise that with you before deciding.

Employers should note that a long-serving worker's single heated remark, in a situation the employer helped create, may not justify dismissal. If you have been dismissed, a Fair Work unfair dismissal application must be lodged within 21 days, so consider getting advice early.