QIRC Upholds Dismissal of Long-term Employee for Engaging in Physical Contact

The Queensland Industrial Relations Commission has upheld the termination of a long-term employee dismissed for aggressively pushing a co-worker, acknowledging the right of an employer to impose a zero-tolerance policy to violence in the workplace as part of providing a safe place of work.

The employee 'PC' had been employed by Queensland Health for approximately 25 years.

On 21 November 2019, the employee was found guilty of misconduct and was dismissed from his employment. The dismissal arose from a single incident on 20 July 2019 when he was found to have 'aggressively pushed' a work colleague, 'EC', into a trolley in the main kitchen at the Princess Alexandria Hospital in Brisbane's south. The hospital has CCTV, which captured the incident.

PC, who was represented by the Australian Workers Union, claimed his termination was harsh, being disproportionate to the alleged conduct, and that the decision-maker had failed to consider all circumstances leading up to the incident.

While PC accepted that he had, in fact, pushed his co-worker, he claimed to have acted in self-defence after being subject to verbal and physical provocation.

In making her decision, Commissioner Sam Pidgeon noted that PC had previously been warned in writing on two occasions for behaving unprofessionally in the workplace and not treating his colleagues with respect. He had also received verbal counselling in 2017 after making a threat of physical violence to another employee.

It was accepted that the co-worker had been near PC prior to the incident. However, as the Commissioner noted,

"I have reviewed the CCTV footage, stills, and witness statements many times. Mr (PC) and Mr (EC) are physically engaged with each other, and Mr (PC) is walking forward while Mr (EC) is stepping back. That action would have stopped any provocative behaviour from Mr (EC) and Mr (PC) would have any been able to walk away or raise the alarm to his supervisor who was in the room".

Put simply, although EC may have been saying something annoying to PC,

"The response of Mr (PC) in the circumstances is in my view not proportionate to the provocation…Under cross examination, Mr (PC) agreed that he had no reason to fear Mr (EC) in the workplace or outside of the workplace".

Further, she noted,

"I do not accept that Mr (PC) had no option in defending himself from Mr (EC's) unwanted advance but to push him into the trolley in a way that I would describe as aggressive".

The Commissioner also acknowledged the policies and recent training that had been provided to all employees, including PC, regarding bullying and harassment.

"I note in particular that the Occupational Violence Awareness training communicated the message that the Respondent has a zero tolerance approach to violence in the workplace".

Regarding his previous history, Commissioner Pidgeon noted,

"These two non-disciplinary warning and the training of Mr (PC) as a result of each warning make it clear Mr (PC) was aware of the expectations of his employer with regard to interactions with colleagues and the code of conduct".

Regarding other mitigation proposed by the union, the Commissioner noted,

"However, when taken with the reasons given above, I do not find that the length of service and any hardship experienced by Mr (PC) as a result of his dismissal serves to outweigh the seriousness of his conduct and the employer's position with regard to occupational violence".

The application was dismissed.

The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health (TD/2019/106) 11 February 2022

For questions about tailored training, investigations, physical altercations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.