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Popularity and unfair termination of employment – are workplace rights really a democracy?

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 one of the show’s producers, which allegedly was a response to the producer not providing Clarkson with a hot meal after a long day shooting the program.  A 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 about the BBC.  He has since claimed this was ‘tongue in cheek’.  Yet the petition rages on, and was recently delivered to the BBC offices through London by a tank, driven by the Stig.

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.  We are all entitled to our own opinions, and entitled to lend our support to whatever we feel passionate about.  However I couldn’t help sparing a thought for those many thousands of people around the western world who lose their jobs each year by perpetrating minor workplace violence, normally as a a result of the exact same type of ‘brain snap’.  We don’t see any petitions on Change.org for these people, who are no doubt  hardworking people who love their careers and their families and equally don’t ‘deserve’ the harsh realities of unemployment  all because of one moment of madness.

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.  Even in cases where violence was used in situations of great provocation, and often where it was actually initiated by the other employee.   It is a cornerstone of workplace law that employee safety is paramount, and acts of violence are fundamentally inconsistent with this.  Sympathy for the perpetrating employee is often expressed, but so very rarely outweighs other considerations.

John Whittaker (see John Whittaker v EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T/A EDI [2013] FWC 7908) was dismissed in 2013 for his part in a ‘fracas’between himself and one of his subordinate employees.  In 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.  Mr Whittaker only threw one punch.    Mr Whittaker was dimissed, and the decision was not held to be unfair because the altercation was not ‘unavoidable’.  Even 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.   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 to his conduct. However these factors were not sufficiently mitigating.

In the case of Raymond Gleeson v Aurora Energy Pty Ltd [2010] FWC 2956, a similar altercation took place after two electirician employees had been working on street light faults.  It was accepted by the court that Mr Gleeson’s state of extreme fatigue was a mitigating circumstance, but that his conduct still justified dismissal.  Perhaps 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?  I doubt it.

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

This is hardly Clarkson’s first display of unreasonable behavior, and to me the idea that the wealthy and famous are entitled to conduct themselves in a way that is not considered acceptable by normal members of society is insidious.

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.   In 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.  And these are dangerous waters.  There 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.

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

* Helen Carter is the Director and founding solicitor solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They 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.

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