{"id":160,"date":"2015-03-23T03:58:31","date_gmt":"2015-03-23T03:58:31","guid":{"rendered":"http:\/\/helencarter.com.au\/?p=160"},"modified":"2016-01-14T22:50:50","modified_gmt":"2016-01-14T22:50:50","slug":"popularity-and-unfair-termination-of-employment-are-workplace-rights-really-a-democracy","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=160","title":{"rendered":"Popularity and unfair termination of employment – are workplace rights really a democracy?"},"content":{"rendered":"

While I understand the iconic popularity of Top Gear host Jeremy Clarkson, I was genuinely surprised to learn over the weekend that an online petition demanding his reinstatement had passed the 1,000,000 signature mark<\/a>.<\/p>\n

This comes after an interesting month, in which Clarkson was suspended from his job with the BBC for a ‘fracas’ with one of the show’s producers, which allegedly was a response to the\u00a0producer not providing Clarkson with a hot meal after a long day shooting the program. \u00a0A determination as to his future at the BBC is still pending, however while on suspension Clarkson has been open about his intention to sue the BBC if his employment is terminated, and at a recent charity auction delivered a public verbal spray<\/a> about the BBC. \u00a0He has since claimed this was ‘tongue in cheek’. \u00a0Yet the petition rages on, and was recently delivered to the BBC offices through London by a tank, driven by the Stig.<\/p>\n

I’m not going to comment on some of the causes in today’s world that might have deserved the 1,000,000 signatures more than Clarkson and Top Gear. \u00a0We are all entitled to our own opinions, and entitled to lend our support to whatever we feel passionate about. \u00a0However I couldn’t help sparing a thought for those many thousands of people around the western world who lose their jobs each year by\u00a0perpetrating minor workplace violence, normally as a a result of the exact same type of ‘brain snap’. \u00a0We don’t see any petitions on Change.org for these people, who are no doubt \u00a0hardworking people who love their careers and their families and equally don’t ‘deserve’ the harsh realities of unemployment \u00a0all because of one moment of madness.<\/p>\n

A search of the Fair Work Commission Website with the term “punching fellow employee”, produces hundreds of hits, and the decisions display a zero tolerance attitude toward workplace violence. \u00a0Even in cases where violence was used in situations of great provocation, and often where it was actually initiated by the other employee. \u00a0 It is a cornerstone of workplace law that employee safety is paramount, and acts of violence are fundamentally\u00a0inconsistent with this. \u00a0Sympathy for the perpetrating employee is often expressed, but so very rarely outweighs other considerations.<\/p>\n

John Whittaker (see\u00a0John Whittaker v\u00a0EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T\/A EDI [2013] FWC 7908<\/a>) was dismissed in 2013 for his part in a ‘fracas’between himself and one of his subordinate employees. \u00a0In his case it was accepted by the employer as well as the Commission the start was started, and finished, by the other employee – who was also dismissed. \u00a0Mr Whittaker only threw one punch. \u00a0 \u00a0Mr Whittaker was dimissed, and the decision was not held to be\u00a0unfair because the altercation was not ‘unavoidable’. \u00a0Even though the other employee had instigated the violence, it was held to be relevant that Mr Whittaker had added to the disagreement with previous verbal provocation. \u00a0 The Commission admitted that the applicant had a long service with the company, and a high level of commitment to his job, which had in fact been one of the factors leading\u00a0to\u00a0his conduct. However these factors were not sufficiently mitigating.<\/p>\n

In the case of Raymond Gleeson\u00a0v\u00a0Aurora Energy Pty Ltd<\/em>\u00a0[2010] FWC 2956<\/a>, a similar altercation took place after two electirician employees had been working on street light faults. \u00a0It was accepted by the court that Mr Gleeson’s state of extreme fatigue was a mitigating circumstance, but that his conduct still justified dismissal. \u00a0Perhaps if he’d argued that he’d been ‘hungry’, and that his victim had failed to provide him with a hot meal, he would have had more success? \u00a0I doubt it.<\/p>\n

Where was Mr Gleeson, or Mr Whittaker’s 1,000,000 signatures? \u00a0Was their work not valuable enough to us to engage the community’s support? \u00a0Should we be able \u00a0pressurize the employer to turn a blind eye to conduct which is unacceptable and dangerous? \u00a0Should these 1,000,000 votes convince the BBC to continue Clarkson’s employment, but to employ a special bodyguard to accompany him\u00a0on location – not for his physical protection, but to protect any of his colleagues that may \u00a0might accidentally displease him?<\/p>\n

This is hardly\u00a0Clarkson’s first display of unreasonable behavior, and to me the idea\u00a0that the wealthy and famous are entitled to conduct themselves\u00a0in a way that is not considered acceptable by normal members of society is insidious.<\/p>\n

But perhaps even more disturbing is the idea that Clarkson’s professional success should afford him greater protection – and in turn greater scope for unaccountable misconduct. \u00a0\u00a0In my years as a junior solicitor it was standard practice in large firms to turn a blind eye to high revenue earning partners who alternated between lecherous and abusive on a day to day basis. \u00a0And these are dangerous waters. \u00a0There is a fine line between turning a blind eye to poor conduct to protect a company’s high revenue generators, and making a statement to society and the workforce that successful people are entitled to mistreat their colleagues because of their success.<\/p>\n

But my main issue with the BBC if they respond to this petition, is buying into the idea that workplace law is a democracy. \u00a0Should we allow the public to ‘vote’ on whether or not a termination is fair? \u00a0 Workplace rights are part of the essential fabric of free and equal society. \u00a0I would hate to see it become a popularity contest.<\/p>\n

* Helen Carter is the Director\u00a0and founding solicitor solicitor at PCC Lawyers<\/a>,\u00a0a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. \u00a0They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

While I understand the iconic popularity of Top Gear host Jeremy Clarkson, I was genuinely surprised to learn over the weekend that an online petition demanding his reinstatement had passed the 1,000,000 signature mark. This comes after an interesting month, in which Clarkson was suspended from his job with the BBC for a ‘fracas’ with […]<\/p>\n","protected":false},"author":21,"featured_media":161,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[8,30,31],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/160"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=160"}],"version-history":[{"count":6,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/160\/revisions"}],"predecessor-version":[{"id":214,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/160\/revisions\/214"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/161"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=160"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=160"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=160"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}