15 November 2021

Fighting in the workplace - it's more than just who punched who

It is fairly well known that fighting in the workplace will justify dismissal. Fighting is unsafe and destroys confidence and workplace relationships. But, like most rules, there are exceptions and these can be difficult for employers to navigate.

In Sheridan v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2021] NSWIRComm 1043, the NSW Industrial Relations Commission examined some of those exceptions in deciding whether a dismissal for fighting was justified. The Commission also provided useful
guidance on allegation writing and decision-making.

The facts

Mr Sheridan and Mr Young were security guards at a hospital. They had a poor working relationship but rarely worked together until a fateful night shift on 27 September 2019.

During the transfer of a patient, the patient tried to escape and Mr Young reacted by grabbing the patient. Feeling that Mr Sheridan had not assisted him, he exchanged words with him. As the men were walking back after completing the transfer, Mr Young swore at Mr Sheridan, who said something back. Mr Young then approached and swung a punch at Mr Sheridan. It was not clear if the punch connected or not.

Mr Sheridan stepped back and put his hands up ready to fight. As Mr Young turned and walked away, Mr Sheridan approached from behind and swung punches at Mr Young’s head. Maybe there was an upper cut or two. Nursing and other staff separated Mr Young and Mr Sheridan. As Mr Young retreated again, Mr Sheridan pursued him and another altercation occurred.

The hospital dismissed both Mr Young and Mr Sheridan. Mr Sheridan challenged his dismissal as unfair.

Fighting

In the absence of extenuating circumstances, fighting in the workplace can be grounds for dismissal. However, it has been said in earlier decisions that “merely participating in a fight will usually be insufficient to justify summary dismissal.” To assess culpability, any examination of the dismissal should determine who was the aggressor, whether the employee was doing more than defending themselves, and whether they were provoked into a fight by the other party.

Any extenuating circumstances?

Mr Sheridan’s first line of defence was that he was merely defending himself; Mr Young attacked him. Mr Sheridan said that after the first blow he suffered a concussion and could not remember anything else.

When shown the CCTV footage of his attack on Mr Young, Mr Sheridan stated that his poor relationship with Mr Young, which he characterised as being bullied over the years, caused him psychological suffering and that he had entered a ‘fight or flight’ mode, which explained his subsequent actions. Those actions, he said, were involuntary.

Both the hospital and Mr Sheridan had their own experts, each at odds. How was the contest resolved?

The hunted becomes the hunter

There was no doubt that Mr Sheridan and Mr Young did not like each other. But given they were rarely rostered to work together, that could not justify Mr Sheridan’s disproportionate response on that night shift. Mr Sheridan’s attempt to blame the hospital for not addressing his concerns with Mr Young did not “exonerate Mr Sheridan from his conduct that evening,” the Commission said.

The CCTV footage, supported by eyewitness accounts, was damning in conveying that Mr Sheridan took matters into his own hands. “While I would not go so far as to suggest that Mr Sheridan was waiting for an opportunity to ‘have a go’ at Mr Young, the impression arising from all of the evidence, including the CCTV footage, is that he was certainly willing to take the opportunity when it was presented,” the Commission found.

Mr Sheridan argued he had no memory of the fight. Yet he told the nurses immediately after the fight that he was not going to stand by and take Mr Young’s actions. When offered the opportunity to go home, Mr Sheridan said he was fine. These actions demonstrated an awareness of
his actions during the fight.

In these circumstances, Mr Sheridan’s claim of concussion and memory loss was not credible. Given his limited interaction with Mr Young, particularly in the lead-up to the night of the fight, the Commission also found that Mr Sheridan’s conduct was not brought about by any predisposition towards a “fight or flight” response due to any psychological condition. In cross-examination, Mr Sheridan’s expert psychologist accepted that this explanation was only a theory, not a fact. That is, it was equally likely that Mr Sheridan simply decided to get Mr Young once Mr Young made the first move.

The Commission concluded:

Viewed in the context of all of the evidence, the incident appears to have been the culmination of ongoing resentment between Mr Sheridan and Mr Young. This is demonstrated by Mr Young’s initial aggressive and violent confrontation of Mr Sheridan, and Mr Sheridan’s arguably more aggressive and violent retaliation. Rather than Mr Sheridan’s response being a manifestation of his underlying emotional and psychological condition, which might reduce his accountability, I consider that Mr Young’s assault was for Mr Sheridan a step too far and he determined, to paraphrase his words, “not to stand there and take it”.

As there were no “extenuating circumstances”, the dismissal was found to be fair.

Lessons

In this case, the hospital did not rely solely on the CCTV footage, but also obtained direct evidence from witnesses. It looked at events before and after the fight, and this was critical to understanding the fight’s context. Mr Sheridan’s actions and words immediately after the fight indicated he suffered no ill-effects from the fight. This evidence demonstrated he knew what he was doing, which rendered his expert witness testimony useless.

Despite this, the decision was almost found to be unfair. Seven allegations were made against Mr Sheridan, drawing on his conduct in not assisting Mr Young with the patient, his words to Mr Young, and his getting involved in the physical altercation. Allegations were duplicated; for example, it was stated that Mr Sheridan had engaged in a “verbal altercation” (allegation 4), a “physical altercation” (allegation 5) and had otherwise “acted in a way… that was verbally and physically aggressive” (allegation 6). The termination letter stated that all these allegations justified dismissal.

That left the hospital in a precarious position when the allegations about the lack of assistance to Mr Young with the patient were not proven, and the allegation of a verbal altercation was not established. The Commission then questioned whether the hospital would have dismissed him absent those four allegations; the number of allegations suggested that the fighting alone would not justify dismissal. The Commission astutely observed, “the seriousness of an employee’s misconduct, if established, and whether that misconduct justifies termination of their employment, is not measured by the number of allegations against them, but by the gravity of their conduct.”

A further learning here is that employers would be better to focus on the essence of the misconduct. Where multiple allegations are made, it is wise to consider if the allegations alone would justify dismissal. This would allow a fall back if some allegations are not proven at hearing.

Conclusion

Ultimately, the decision provides reassurance for employers seeking to take decisive action against inappropriate behaviour at work. Just as an employer needs to prove alleged misconduct, an employee needs to persuasively establish extenuating circumstances if they are to successfully appeal a dismissal.

Author: James Mattson