Concreter sacked for “smirking” during reprimand wins unfair dismissal case

A Melbourne concreter has won an unfair dismissal case against his employer, after the company fired him for allegedly smirking during a conversation reprimanding him for a safety violation.

The case has urged one industrial relations expert to warn businesses not to simply dismiss employees for these types of conversations – instead warning SMEs to diligently monitor performance.

“If you’re wanting to gauge how seriously an employee is going to take the warning, and what their attitude is going to be, then it probably pays to ask specific questions,” warns legal expert Peter Vitale.

Fortunato Perri was working for Anglo Italian Concrete for 15 years after he was given a warning for a breach in workplace health and safety. Perri had given another employee a “lift” across eight to ten metres using the trowel about four weeks prior – such use of the vehicle is prohibited.

Perri then told Fair Work at this point, the company’s general manager told him to “get that f**ken [sic] smile off your face”, and told him he was a “smart arse”. He also said after this exchange, the general manager said Perri would be sacked.

Perri argues it was because of his “smiling” or “smirking” he was dismissed, but also said his facial expression shouldn’t be taken as a reliable indicator of his attitude or emotion.

The company, in turn, argued there was a breakdown in the working relationship. It also stated during this same meeting, Perri said, “if you want to sack me then sack me”. The company also said Perri remarked there was a lot happening in the workplace the general manager didn’t know about.

The general manager, Chris Collett, said he didn’t believe Perri’s apology was sincere, and had doubts about whether he viewed the incident as serious.

In any case, Fair Work commissioner David Gregory said in the ruling he didn’t feel either version of the conversation given by Collett or Perri constituted a “sound, defensible or well founded” reason for a sacking.

He pointed to the fact Perri had worked for the company for 15 years, and had an extremely good safety record.

“The Respondent also indicated when the meeting was convened it was not intended that the Applicant or the other employee, Mr Vincent, were going to be dismissed because of what occurred at the Deer Park site on 29 March.”

“However, perhaps due to a misunderstanding, as much as anything else, the meeting took a different course ending in a conclusion which was not intended at the outset, nor in my view justified at the end given what occurred.”

Peter Vitale says this is the key takeaway – the general manager had not intended to fire the employee, but decided to do so based on a misunderstanding of his body language.

That type of decision needs to be, “based on evidence, rather than impulse”.

“So if you feel an employee doesn’t understand what’s happening, you need to ask questions. You need to ask whether they understand what’s going on, if they have any problem with it, and if so, then why?”

“You need to ask specific questions, rather than just reach assumptions.”