DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Mark Gwatking
v
Schweppes Australia Pty Ltd
(U2015/331)

COMMISSIONER HAMPTON

ADELAIDE, 15 JULY 2015

Application for relief from unfair dismissal – altercation between two employees at the workplace – long serving employee – applicant provoked but response beyond self-defence – serious incident for individuals and other employee seeking to intervene - valid reason found – dismissal harsh in the circumstances – remedy - remedial benefit of reinstatement - no contrition or sense that conduct inappropriate – grounds for loss of trust and confidence found – reinstatement not appropriate – compensation awarded.

1. Background and case outline

[1] Mr Mark Gwatking has made an application under s.394 of the Fair Work Act 2009 seeking a remedy for an alleged unfair dismissal. Mr Gwatking had been employed as a Filler Operator by Schweppes Australia Pty Ltd (Schweppes) at its Payneham factory in South Australia for a period of over 30 years at the time of his dismissal in January 2015.

[2] Mr Gwatking was dismissed by Schweppes following an incident with another employee on 9 January 2015 during which a physical and verbal altercation occurred. There is a dispute about the details of that altercation, including which employee initiated the incident, the nature of the physical and verbal exchanges, and the degree to which Mr Gwatking actively participated.

[3] Mr Gwatking was represented by United Voice in this matter and contends that he was, in effect, assaulted by the other employee, Mr FW, 1 and pushed to the ground. He further contends that he pushed Mr FW away in self-defence and his conduct was reasonable and proportionate in the circumstances. That is, the altercation was at the very low end of seriousness and any conduct on his part was undertaken in the face of significant provocation. Mr Gwatking also contends that he showed remorse, honesty and contrition during the investigation and disciplinary process.

[4] On the basis of the above contentions, Mr Gwatking submits that there was no valid reason for his dismissal and that the dismissal was harsh and disproportionate to the conduct given the consequences for a very long serving and loyal employee. Further, he contends that the dismissal was unreasonable in that it was based upon inferences that were not available to the employer. Mr Gwatking seeks reinstatement and relies upon his own circumstances and the attitude of the workforce to support that notion. In the alternative, Mr Gwatking seeks significant compensation.

[5] Schweppes, which was represented with permission by Ms Aistrope of Kelly Hazel Quill Lawyers, contends that the altercation between the applicant and Mr FW involved Mr Gwatking acting aggressively and actively engaging in the physical altercation. This was said to involve both men going at each other including by pushing and shoving, “air punching”, the grabbing of Mr FWs’ clothing and aggressive language. The altercation occurred in the context of a workplace where employees work in close…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Gwatking v Schweppes Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FWC 3969
Decision Date: 15 JULY 2015

CaseChat Overview and Summary

In the case of Gwatking v Schweppes Australia Pty Ltd, the applicant sought relief from a dismissal deemed unfair, following an altercation at the workplace. The applicant, a long-serving employee, was involved in a physical altercation with a colleague, despite having been provoked. The respondent employer dismissed the applicant, citing that his response to the provocation was excessive and beyond the realm of self-defence. The dispute was brought before the court to determine whether the dismissal was justified and, if not, to consider appropriate remedies.

The court was required to examine the nature of the altercation, the applicant's response, and whether the dismissal was justified. Additionally, it had to consider the principles of fairness in the termination of employment, particularly in the context of an employee who had not shown contrition or acknowledged the inappropriateness of their conduct. The court also had to evaluate whether the dismissal breached the principles of procedural fairness and whether it was proportionate to the misconduct.

In delivering the judgment, the court found that while the applicant's response was indeed excessive, the dismissal was still considered harsh, unjust, or unreasonable due to the applicant's lack of remorse and understanding of the gravity of the situation. The court acknowledged the serious nature of the incident, both for the individuals involved and for the employee who attempted to intervene. However, the court also found that the applicant's conduct had breached the fundamental principle of maintaining trust and confidence in the workplace. As a result, the court determined that reinstatement was not an appropriate remedy. Instead, the court awarded the applicant compensation in lieu of reinstatement, reflecting the serious nature of the misconduct and the impact on the workplace environment.

The court ordered that the respondent pay the applicant compensation for the unfair dismissal, taking into account the applicant's length of service and the circumstances surrounding the dismissal.

Orders