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August 2021

Dismissal a disproportionate response to misconduct

Dismissal a disproportionate response to misconduct

The Case

Whitfield v Primo Foods Pty Ltd (2021)

Primo Foods Pty Ltd (Primo Foods) employed Ms Whitfield as a meat processing worker. She was tasked with transferring bacon from one conveyor belt, weighing it and moving it to a lower conveyor belt. When one of the weighing machines stopped working, Ms Whitfield left her post to obtain another machine. In the process of replacing the machine, a piece of bacon fell on the floor and another worker told Ms Whitfield to pick it up. Ms Whitfield told the worker to “shut up” and told her supervisor she “felt like knocking [the other worker] off her perch”.

Ms Whitfield was required by Primo Foods to provide a statement about the perceived threat to the other worker and was then issued with a show cause letter to provide reasons why her employment should not be terminated.

Ms Whitfield indicated she had responded in the heat of the moment and did not intend the threat. Nevertheless, Primo Foods terminated Ms Whitfield’s employment summarily for serious misconduct.

Ms Whitfield lodged an unfair dismissal claim with the Fair Work Commission (FWC), seeking reinstatement.

The Verdict

The FWC ordered Primo Foods to reinstate Ms Whitfield, finding that:

  • the breakdown of the weighing machine resulted in significant stress and frustration to Ms Whitfield and the other worker;
  • Ms Whitfield’s comments were said in frustration and the heat of the moment, given the circumstances of the breakdown;
  • “knocking someone off their perch” was a colloquial phrase and could not reasonably be interpreted as a serious threat of physical violence;
  • while the words stated might be able to be construed as an act of misconduct, they did not constitute serious misconduct;
  • Primo Foods did not provide Ms Whitfield with an adequate opportunity to respond to the allegations;
  • the dismissal was a disproportionate response to Ms Whitfield’s conduct; and
  • there was no impediment to reinstating Ms Whitfield despite Primo Foods’ claims there was a breakdown of trust and confidence between them.

The Lessons

Reinstatement is a possible remedy where an unfair dismissal is found to have occurred. As such, it is important to carefully consider whether employment termination is a fair and reasonable response to any act of misconduct before making a decision to dismiss.


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