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Ill-tempered fashion worker’s dismissal upheld by FWC

By Portner Press on April 8th, 2019
  1. Performance Management
  2. Misconduct

A former employee of fashion designer Alex Perry has lost his unfair dismissal claim with the Fair Work Commission (FWC), after he was dismissed for threatening and aggressive behaviour towards female colleagues.

In May 2016, the pattern maker and machinist was issued with a warning after he got into a heated exchange with a 65-year-old female co-worker. When she made a comment about his workmanship, he shouted at her “I’ll f— you up the arse”.

Alex Perry said in the hearing that this was not the first time the employee had behaved aggressively towards female colleagues.

He recalled an earlier incident when he had to speak to him after he threatened another female colleague. He told Mr Perry “Sometimes women just need a slap”.

In September 2018, the employee was issued with a second warning, when he allegedly told a female manager he would “f—ing slap” another female co-worker, when he suspected she may have criticised his work.

Three days later, the company’s HR manager called the employee into a meeting to discuss concerns about the quality of his workmanship.

When she pointed out the unacceptable samples of work, the HR manager said the employee became progressively more heated and aggressive, hitting the samples rack and jabbing his finger at her.

Within 30cm of her, he shouted “these are perfect!” four times. When she tried to explain the faults, he continued to shout “these are perfect!”, “I am the best machinist here. Who are you?”

She then tried to hand the employee a warning letter, which he refused to take. He eventually picked up the letter and read it, before throwing it at her.

“I’m not signing this. Who are you? You are nothing,” he said.

He then yelled “I want to speak to Alex. He thinks I am amazing.” When she told her that Mr Perry wasn’t present and she had the authority to deal with him, he replied again “You are nothing.”

A ‘defence of the indefensible’

In the dismissal meeting, the employee denied that any of the incidents had occurred and told the FWC in the hearing that he had never sworn, in any circumstances, even though he claimed that “swearing and banter was commonplace” in the workplace.

He also said that Mr Perry himself told him that one of the female workers was a “f—ing bitch who he would get rid of” and “that some women need a slapping from time to time”.

Mr Perry denied making these comments, which FWC Deputy President Peter Sams accepted.

“It is difficult to understand why [the employee] relied on a claim that swearing (and banter) was common in the workplace, if his primary position was he had never sworn at any time, as it was not in his nature,” he said.

The employee also said he had not received any written warnings and denied signing an employment contract, which the employer produced in the hearing with his signature on it.

Deputy President Sams said the employee “was a witness of little credit” and that his CFMMEU union representative, who represented the textile division of the organisation, “was left to valiantly build a case akin to creating ‘a silk purse out of a sow’s ear’”.

“[The] case focused almost entirely on a few insignificant procedural points and a poor work performance warning, which was completely unrelated and irrelevant to the reasons for [the employee’s] dismissal,” he said.

“In short, [the union representative] struggled to defend the indefensible.

“[H]ad [the employee’s] case attracted a finding of some measure of ‘harshness’, it seems to me that one of the further matters to be taken into account would include any acknowledgement by [the employee] of misconduct, a genuine apology, real contrition, or realistic assurances the conduct would not be repeated.

“None of these elements or anything resembling them, were evidenced in this case. This weighs against a finding of unfairness.

“In the face of such overwhelming cogent and corroborative evidence, it is somewhat surprising to me that the union, which [the union representative] expressly told me comprises 98% women members, working in poor sweatshop conditions, would have represented a person who has, at best, little respect for women.

“[E]ven if any ‘harshness’ factors tipped the balance in [the employee’s] favour, I could not be satisfied, given his untruthfulness, his failure to acknowledge a skerrick of responsibility for his appalling conduct and his total disregard for company policy and procedures, that he should be reinstated,” Deputy President Sams said.

How would you respond to such a badly behaved employee in your organisation?

Do you have the correct policies and procedures in place to address such behaviour quickly and legally?

The following chapters in the Employment Law Practical Handbook provide all the information you need to stay on the right side of the FWC in the event of an unfair dismissal claim:

H3 Misconduct

D2 Dismissal

F1 Fair Work Commission

U1 Unfair Dismissal

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