Ling-yi Tsai is a distinguished HRTech and employment expert with over twenty years of experience navigating the complex intersection of organizational change and workplace technology. Her deep expertise in HR analytics and talent management has made her a sought-after voice for companies striving to balance rigorous policy enforcement with human-centric leadership. Today, she joins us to break down the nuances of a recent landmark case involving a long-term employee, examining how procedural fairness and solid evidence play a critical role in the defensibility of high-stakes dismissals.
We explore the delicate balance between a decade-plus tenure and zero-tolerance assault policies, the legal pitfalls of failing to provide evidence or proper interpretation services, and how “neutral” disciplinary histories impact modern unfair dismissal claims.
When an employee with nearly two decades of tenure is involved in a physical altercation involving an open-handed strike, how should a company weigh their length of service against a zero-tolerance policy? What specific criteria determine if an assault constitutes a valid reason for immediate termination?
A 17-year tenure creates a significant emotional and professional “credit” for an employee, but it is not an absolute shield against the consequences of physical violence. In this specific case, the employee’s 17 years of service and his medical issues, including the use of hearing aids, were heavy factors that weighed in his favor, yet the physical act of a strike ultimately overrode them. For a company, the criteria for immediate termination often hinge on whether the assault fundamentally breaches the trust and safety of the workplace, regardless of whether it was a closed fist or an open-handed slap. Even when CCTV footage is partially obstructed—showing a fast motion consistent with a punch without showing the point of impact—the lack of a valid self-defense argument can make the assault a primary reason for dismissal. Ultimately, the safety of the remaining 700 staff members must be prioritized, and a proven physical strike is typically seen as a valid reason that outweighs even a long-term, stable employment history.
If an employer fails to provide CCTV evidence or written allegations before a termination meeting, what legal risks do they face? How can HR teams ensure procedural fairness when dealing with language barriers or the need for accredited interpreters during sensitive disciplinary interviews?
Failing to provide evidence like CCTV or written allegations creates a “procedural flaw” that can make an employer vulnerable in an unfair dismissal claim, as it denies the employee the right to respond to the specific case against them. It is quite rare and unusual for an employee with nearly two decades of service to lose their job based on footage they were never allowed to see until the legal proceedings began. To ensure fairness, HR must avoid using “in-house” staff, such as a Vietnamese-speaking colleague, to interpret during high-stakes meetings; instead, they should engage accredited interpreters to ensure every nuance of the allegation is understood. When an employee’s account shifts—such as first claiming a colleague tried to pick-pocket $200 and later changing the story after finally viewing the footage—the lack of an early, transparent process only complicates the legal defense. Providing these “basics” isn’t a nicety; it is the difference between a clean win and a messy, protracted appeal.
Management sometimes nominates a support person for an employee rather than allowing them to choose their own or contacting their union. What are the potential consequences of this practice, and how does it impact the defensibility of a dismissal if the employee is later found to be at fault?
When management nominates a support person instead of allowing the employee to choose their own or involving their known union, they risk the perception of bias and procedural unfairness. In this instance, the company knew the worker was a union member but failed to contact the union, which the commission flagged as a serious flaw in the process. Such actions can make a dismissal feel “harsh” or “unreasonable” even if there is a valid reason for the termination. While the Full Bench ultimately upheld the firing, they noted that these procedural missteps were significant and could have easily led to a different outcome in a less clear-cut case of misconduct. For the dismissal to be truly defensible, the employee must feel they have an independent advocate who is there to support them, not someone chosen by the very party seeking to end their employment.
When an employee has hearing aids, medical issues, or significant personal circumstances, how should these factors be documented during a disciplinary investigation? At what point do these mitigating factors outweigh a workplace violation, and how can managers remain objective while considering them?
Mitigating factors like hearing aids, age, and personal economic impact should be documented as part of the “proportionality” check during an investigation to show that the employer considered the whole person. In this case, the worker’s personal circumstances and medical history were weighed, but they did not outweigh the physical altercation because the commission found that even if management had known all these details on the day of the firing, the outcome would not have changed. To remain objective, managers should use a “weighted” approach: determine first if a valid reason for dismissal exists, and then ask if the personal circumstances make the dismissal “harsh” in light of that reason. When an employee shows contrition or has a long history of service, these factors might mitigate a minor violation, but they rarely excuse a breach as severe as a physical assault. It is a sensory and emotional process where you must balance empathy for the worker’s 17-year history against the hard reality of a workplace safety violation.
If an employee receives several warnings for minor issues in a short period shortly before a major incident, how should these be treated in an unfair dismissal claim? Can a pattern of “neutral” warnings strengthen a case, or do they complicate the narrative of a long-term, stable worker?
A cluster of warnings—like the three warnings issued in June 2024, just a month before the final incident—can be interpreted in two ways: as a sign of a declining employee or as a “neutral” factor if the issues were minor. In this litigation, the previous warnings regarding a lunchroom incident involving a microwave and a vegetable crisper were treated as neutral because the final dismissal letter didn’t explicitly rely on them. However, an escalation in disciplinary activity right before a major event can sometimes complicate the narrative, leading to theories of bias or “targeting,” especially if the worker has recently lodged a workers’ compensation claim. For a case to be strong, the employer should focus on the gravity of the final incident rather than trying to build a “rap sheet” of minor, unrelated infractions. A long-term worker’s stability for 16 years often speaks louder than a sudden burst of minor warnings in year 17, unless those warnings directly relate to the conduct that caused the firing.
Do you have any advice for our readers?
My strongest advice is to never let the presence of a “valid reason” make you complacent about the process; you must treat the procedural steps as being just as important as the evidence of the misconduct itself. Even if you are 100% certain that an assault occurred, you must still provide the allegations in writing, offer the employee their choice of a support person, and ensure they have seen the evidence—like CCTV—before the final decision is made. The Fair Work Commission may back an employer despite “serious flaws” in some cases, but those flaws are expensive, time-consuming, and carry a high risk of being overturned on appeal. Always act as if your process will be scrutinized under a microscope, because for a long-serving employee, it almost certainly will be. Consistent, fair, and transparent procedures are your best insurance policy against the unpredictability of legal challenges.