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September 2019

Pelican feeder reinstated despite swearing in the workplace

Pelican feeder reinstated despite swearing in the workplace

Matthews v San Remo Fisherman’s Co Operative (2019)

The Case

The San Remo Fisherman’s Co Operative (San Remo) employed Mr Matthews as a pelican feeder. Mr Matthews was also a member of the Pelican Research Group (PR Group). San Remo permitted Mr Matthews to sell badges and obtain donations for the PR Group. San Remo ceased sales of the badges when the Department of Environment, Land, Water and Planning enquired whether San Remo was profiteering from wildlife.

As a result of this enquiry, San Remo requested Mr Matthews provide details of the revenue raised from badge sales. Mr Matthews refused, saying it was not relevant to his employment. San Remo never told Mr Matthews the reason for the request.

A visitor thereafter asked Mr Matthews about the badges. Thinking San Remo was setting him up, Mr Matthews confronted the general manager, swore and accused him of trying to set Mr Matthews up. San Remo terminated Mr Matthews’ employment by email.

The Verdict

The Fair Work Commission (FWC) reinstated Mr Matthews, finding:

  • there was not a valid reason for dismissal, given:
    • the refusal to comply with the request for information, without an explanation being provided for the request, did not constitute a repudiation of the employment contract;
    • Mr Matthews had sworn in frustration, not out of aggression, and the general manager had been similarly frustrated at the time; and
    • the conversation had arisen out of a misunderstanding, in circumstances where there was an otherwise good relationship;

  • Mr Matthews had not been provided with an opportunity to respond to the reasons for the proposed dismissal;
  • Mr Matthews had a good period of 18 years’ service; and
  • the parties could re-establish the necessary trust and confidence of the employment relationship.

The Lessons

This case shows how easy an unfair dismissal claim can arise. As such, you should:

  • ensure you explain the reasons for your requests to employees;
  • consider whether there are valid reasons for dismissal or alternatives to dismissal; and
  • always provide the employee an opportunity to respond to those reasons prior to making the decision to terminate their employment.
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