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Norman Waterhouse

A swearing, confrontational, unremorseful and previously warned employee receives compensation for being unfairly dismissed.

In the recent decision of Benjamin Elliot v Australian Rail Track Corporation Ltd [2019] FWC 3786, Deputy President Saunders of the Fair Work Commission (the Commission) held that the termination of an employee who was on a final warning was considered ‘harsh’ and ordered compensation to that employee.


Mr Benjamin Elliot as employed by the Australian Rail Track Corporation Ltd (ARTC) in the position of Terminal Coordinator. Mr Elliot was required to report to Mr May, his Train Transit Manager, who reported to Ms Turner, the Service Delivery Manager.

In early June 2015, Mr Elliot aggressively said “f**k you Dean!” in a verbal altercation with his former manager. The ARTC provided Mr Elliot with a letter stating that his conduct was unacceptable but that “no formal disciplinary action” would be taken against him.

On 28 December 2017, Mr Elliot was issued first and final warning (Final Warning) for aggressively stating “if you want we can go down stairs and sort it if you like” and “I’ll put you in an ambulance c**t” to another employee. As such, Mr Elliot was placed on a Performance Management Plan (Plan) for a 12 month period. The Final Warning indicated that any breaches of the Plan or his employment obligations may result in termination. Mr Elliot signed the letter as acknowledgement that he accepted these terms.

On 13 December 2018, Ms Turner sent an invitation to Mr May, Mr Elliot and other employees in relation to a risk assessment meeting (Risk Meeting) to be held on 18 December 2018. On 16 December 2018, Mr Elliot and Ms Turner exchanged emails regarding the Risk Meeting and Mr Elliot’s bonus.

Mr Elliot’s first email requested further particulars regarding the Risk Meeting. Shortly after, Mr Elliot sent a second email asking “why and how I did not receive a bonus this year …”. Ms Turner separately replied to each email, the first reply referred to the Risk Meeting and indicated that “If this wasn’t clear in the email I will take that on-board for next time”. The second reply stated that Mr Elliot “will not receive a bonus this year due to the disciplinary action undertaken in the performance review period”. Not long after, Mr Elliot replied to Ms Turner’s emails stating, among other things, that “I feel your response is quite aggressive”.

On 18 December 2018, Ms Turner approached Mr Elliot to discuss the Risk Meeting. During the discussion Ms Turner told Mr Elliot that he was to comply with the ARTC’s policies, to which Mr Elliot condescendingly replied “I don’t give a s**t about what the ARTC policies state”. Ms Turner told Mr Elliot that she did not appreciate the language he was using. Mr Elliot then apologised in a sarcastic tone, stating “sorry I said the s-word”.

Shortly after, Ms Turner and Mr May approached Mr Elliot at his desk. Ms Turner reiterated that Mr Elliot was required to comply with the ARTC’s policies and that she did not appreciate the language he had used. Mr Elliot repeatedly told her that he did not wish to discuss the matter further and wanted to be left alone. Mr Elliot then told Mr May “Boss, you are going to have to get someone to cover for me. I’m stressed. I’m going home”. Mr Elliot then walked away from the discussion and muttered “f**k” loud enough for Mr May to hear.

On 24 December 2018, Mr Elliot was provided with an allegations letter requesting that he provide a formal response to allegations of misconduct in regards to his discussions with Ms Turner on 18 December 2018.

On 14 January 2019, Mr Elliot attended a meeting the ARTC. Mr Elliot had a union representative present as a support person. Mr Elliot’s representative informed the ARTC that Mr Elliot considered the actions of Ms Turner as bullying and harassment. Mr Elliot then subsequently filed a complaint against Ms Turner.

On 30 January 2019, during a meeting with Mr Elliot and his representative, the ARTC provided Mr Elliot with a letter of termination (Termination Letter). The Termination Letter indicated that three of the four allegations against Mr Elliot were substantiated.

Further, the Termination Letter stated that the allegations “represent significant breaches of ARTC’s Code of Conduct in particular Part 2 – Principles of Behaviour and Part 3 – Harassment, Bullying and Discrimination”. The ARTC considered Mr Elliot’s conduct had amounted to serious misconduct and his employment was summarily terminated. As such, Mr Elliot made an unfair dismissal application to the Commission seeking reinstatement of his previous position with the ARTC and compensation.


The Commission held that Mr Elliot had failed to conduct himself in a respectful and courteous manner especially in consideration that he was being performance managed. Further, the Commission held that Mr Elliot failed to “acknowledge any wrongdoing or remorse for his conduct” but rather, sought “to blame others and make allegations of wrongdoing against others”. The Commission held that due to Mr Elliot’s ongoing conduct, there was a valid reason for dismissal.

However, the Commission found that Mr Elliot’s “conduct did not warrant his summary dismissal and he was not notified of, and given an opportunity to respond to, part of the conduct which formed the valid reason for dismissal”. In particular, the ARTC did not clearly specific how Mr Elliot breached its Code of Conduct. In consideration of these circumstances, the Commission held that ARTC’s dismissal of Mr Elliot was harsh, but was not unjust or unreasonable.

In determining whether reinstatement was appropriate, the Commission considered whether there was a loss of trust and confidence between the parties. The Commission was not satisfied that Mr Elliot had demonstrated sufficient self-awareness of his misconduct that, if reinstated, he would not engage in the same or similar conduct in the future. As such, the Commission held that reinstatement was not appropriate.

Accordingly, the Commission held that ARTC’s decision to summarily dismiss Mr Elliot was harsh. As such, Mr Elliot received compensation in the sum of $7,584.16.

Take Home Messages

While on face value, Mr Elliot’s conduct was a clear case of misconduct and warranted termination, this case serves as a timely reminder for employers to ensure that the principles of procedural fairness and natural justice are upheld throughout the process.

Importantly, when terminating an employee it must be made clear to them the reasons for dismissal.


1 June 2019

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