An employee who threatened his manager with "another Columbine" was held to have been fairly dismissed.
Threats in the workplace can arise from a number of different sources, whether it be a disgruntled or aggressive employee or from people outside the business, such as customers, contractors or former employees.
The management and prevention of violence in the workplace forms part of an employer's duty of care to employees and, as such, consideration should be given to the implementation of appropriate safety policies and procedures to ensure the protection of employees.
Threats of violence in the workplace can derive not only from physical behaviour, but from verbal threats of anticipated violence, as was the case in Lambos v ACT Government as represented by the Territory and Municipal Services Directorate T/A ACTION (Australian Capital Territory Internal Omnibus Network) [2016] FWC 3885.
Dismissal for "Columbine" threat
The employee in question, Mr Lambos, was a bus driver for the Australian Capital Territory Internal Omnibus Network (ACTION).
On 18 December 2014, Mr Lambos contacted ACTION's Workplace Health and Safety (WHS) Coordinator to report his safety concerns regarding the "bottoming out" of seats on his bus, which could result in injury to drivers. Later that same day, after the matter was referred to Mr Lambos' Manager, there was a verbal altercation between Mr Lambos and his Manager during which Mr Lambos said words to the effect:
The reference to "Columbine" was to a shooting massacre that occurred in 1999 at the Columbine High School in the United States.
Shortly thereafter, Mr Lambos' employment was terminated by ACTION on the basis that his statement amounted to a threat of violence, which was in breach of the ACTION Enterprise Agreement 2013-2017. In the termination letter issued to Mr Lambos, ACTION also explained that it had a duty of care to ensure the safety of its employees, and that threats of violence could not be tolerated in the workplace.
Application for unfair dismissal
Mr Lambos subsequently filed an application with the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) alleging that the termination of his employment was unfair.
Deputy President Kovacic, who found in favour of ACTION, ultimately held that the comment made by Mr Lambos was a genuine threat of violence and that there was a valid reason for terminating Mr Lambos' employment. In coming to this conclusion, DP Kovacic referred to the decision of Senior Deputy President Hamburger in Priolo v Anthony's Manufacturing Jewellers [2004] AIRC 1097, in which he held that "a threat of violence can be justification for termination of an employee's employment".
In concluding that the decision to terminate Mr Lambos was sound, defensible and well founded, DP Kovacic also referred to sections 9(d) and (f) of the Public Sector Management Act 1994 (ACT), which imposed an obligation upon Mr Lambos, as a public employee, to "treat other public employees with courtesy and sensitivity" and to "not harass another public employee, whether sexually or otherwise".
What constitutes a genuine threat of violence?
An issue that arose in the ACTION case was whether the threat made by Mr Lambos was a genuine threat – was it a threat that could be taken seriously?
In determining whether there was a genuine threat of violence, DP Kovacic took into account the particular circumstances of the case, including the fact that the WHS Manager was fearful of Mr Lambos' presence in the workplace and the fact that Mr Lambos had sent an email to ACTION's WHS Manager stating that there "would be reprisals" if any action was taken against him. DP Kovacic considered that this conduct, when viewed in the context of Mr Lambos' 'Columbine' comment, amounted to a genuine threat of violence as there had been "a threat of some form of action, albeit it was unlikely to be a massacre".
Key lessons
When dealing with threats or acts of violence in the workplace, it is imperative that employers have appropriate policies, procedures and codes of conduct which clearly outline their expectations of appropriate employee conduct in the workplace, and disciplinary procedures that may be taken as a result.
This includes, for example, the requirement that employees act in a respectful and courteous manner to their colleagues at all times and refrain from engaging in aggressive or threatening behaviour in the workplace. The message should also be conveyed that even if a threat of violence is somehow intended as a joke, it may not be interpreted as such leading to a genuinely held apprehension of violence.
Other prevention methods include:
- ensuring there are effective screening practices in place for hiring new staff;
- educating and training senior management and/or human resources on dispute resolution and defusing hostile situations or conflict between colleagues;
- adoption and implementation of a mechanism to report threats in a confidential manner, ensuring the person reporting the conduct is properly protected; and
- implementing adequate security controls in the workplace such as appropriate surveillance systems and barriers to premises (through locks and other systems to control access).
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.
