Dangerous conduct justifies serious misconduct termination

The FWC has dismissed an employee’s unfair dismissal claim, after it found that the Employer (an automotive parts franchise) had grounds to dismiss the employee for serious misconduct.

The Employee was terminated after he engaged in three incidents of misconduct over three days.  Firstly, it was alleged that the Employee performed a burnout in the driveway of the business.  The following day, the Employee did not complete work to an appropriate standard in a customer’s vehicle, which was then compounded by the Employee’s attitude towards the customer when he returned the next day.  Finally, the Employee was alleged to have made “rude and aggressive gestures” on three separate occasions at a security camera in the workshop.

The Employee tried to justify his conduct by saying the incidents were “a result of his frustration with the working conditions at the business.” He alleged that the business was trying to get rid of him because he had “raised concerns about the culture in the workplace and was prepared to be the whistleblower for concerns that other staff members shared but were too afraid to raise.”

Commissioner Gregory was critical of the Employee, noting that each incident was significant.  In particular, Commissioner Gregory noted that in relation to the burnout “it is difficult to contemplate how an employee could be involved in the commission of such a significant and potentially dangerous act on an employer’s premises without there being serious ramifications as a consequence.”

Commissioner Gregory was satisfied that the conduct did amount to serious misconduct, particularly as it occurred over three consecutive days.  He noted that at least two of the incidents were “deliberate and wilful acts, which could reasonably be expected to have significant consequences.”  He found that the Employer then had grounds to conclude that  “[the Employee] had decided that he had either no future, or no intention of remaining with the business in the future. I am also satisfied these incidents acted to destroy any remaining trust and confidence that the business had in [the Employee], and in his ability to act in an appropriate way in the future. They accordingly provided the basis for his summary dismissal …”.

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