QHA November 2017

EMPLOYMENT RELATIONS with Phaedra Crowle
DISMISSAL – THE DETAILS MATTER!
QHA REVIEW | 44
When reading unfair dismissal cases, employers could
be forgiven for believing that there is little consistency
in how cases are judged, making it hard for them
to mitigate the risks for a potential unfair dismissal
claim. In this article we explore two cases, which at
first glance appear to be quite similar, but have very
different outcomes.
ROMBOLA V RAIL COMMISSIONER [2017] FWC 194
This case involved Ms Rombola, a passenger service
assistant employed by the Rail Commissioner of South
Australia. Ms Rombola was dismissed for misconduct
relating to four separate incidents, including:
1. Bullying and harassment of a co-worker;
2. Failure to follow directions;
3. Inappropriate use of a mobile while at work; and
4. Threatening and disrespectful treatment of
a passenger.
Ms Rombola was suspended from work while the
employer conducted an investigation, which found
the allegations substantiated. Ms Rombola denied
all allegations and welcomed any training deemed
necessary to avoid termination.
Further, Ms Rombola claimed that the impact of the
dismissal on her was significant and disproportionate
to what she was alleged to have done.
FINDINGS
Commissioner Hampton of the Fair Work Commission
found that the allegations against Ms Rombola were
proven and there was a valid reason for dismissal. In
addition, the Commissioner found that, while some
of the conduct for which Ms Rombola was dismissed
was of varying seriousness and, in isolation may only
have warranted the issuing of a warning, the totality of
the conduct was sufficient to warrant dismissal. It was
therefore not considered to be harsh or unreasonable
in all the circumstances.
THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY
UNION OF EMPLOYEES, WA BRANCH V THE PUBLIC
TRANSPORT AUTHORITY OF WA [2017]
WAIRC 00066
This case involved Mr Merlo, a transit officer employed
by the WA Public Transport Authority. Mr Merlo was
dismissed in relation to an incident which found he
had used “excessive force” by using capsicum spray
during a confrontation with a 12-year-old boy who
appeared to be under the influence of an unknown
substance. When the allegations were put to Mr Merlo
by the employer, he admitted to using the capsicum
spray, but claimed that he acted in self-defence.
Mr Merlo apologised for his involvement in the incident
and offered to undergo appropriate training and
performance management. This was rejected by the
employer as in its view Mr Merlo’s actions constituted
a serious breach of its policies and that dismissal was
warranted in the circumstances.
Senior Commissioner Stephen Kenner of the WA
Industrial Relations Commission found Mr Merlo’s
explanation of his actions to be plausible in the
circumstances and accepted that he had acted in selfdefence.
In addition, there was evidence that similar
incidents involving other employees had resulted in
lesser penalties being applied by the employer.
Consequently, while the Senior Commissioner found
the dismissal to be disproportionate to the gravity of
the worker’s conduct and therefore harsh, oppressive
and unfair, he suggested that a lesser penalty be
applied under the relevant employment provisions,
ordering Mr Merlo’s reinstatement and demotion by
two classification increments.