Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited
Citation: [2010] FCA 770
At a glance
- Employees affected
- 3
What happened
Three long-serving, full-time employees of Arnotts Biscuits at the Virginia plant, a co-worker, another co-worker, and a third co-worker, were cleaning a production line machine on 28 September 2009. They failed to perform the mandatory 'lock-out/tag-out' procedure before cleaning, despite having recently received training. A supervisor noticed the breach. Arnotts investigated scrupulously, involving the Liquor Hospitality and Miscellaneous Union. On 30 September 2009, instead of dismissing the men as initially concluded the conduct warranted, Arnotts offered each man one month's leave without pay. Each man, on union advice, accepted the offer and continued working after serving the suspension.
What was decided
The union applied for compensation for lost wages, alleging Arnotts contravened section 340 (adverse action) and section 343 (coercion) of the Fair Work Act. The court dismissed the application. The court found Arnotts had not contravened either provision. The offer of suspension without pay, although not authorized by the certified agreement, was a reasonable and genuine exercise of mercy in balancing justice against a serious safety breach. The offer was not coercion, as it genuinely presented an alternative to dismissal that the men were free to refuse.
What it means for employers
Employers can offer alternatives to dismissal for serious misconduct, even if those alternatives are not provided for in awards or agreements. Such offers may not constitute adverse action if genuinely intended as merciful alternatives rather than threats or punishment.
What it means for employees
Accepting an offer of suspension in lieu of dismissal does not necessarily mean the employer committed adverse action or coercion. Employees retain the right to refuse such offers and challenge dismissals through proper procedures.
Want this applied to your situation?
Reading the decision is free. FairWork Mate goes further — it reads the full case library and applies precedents like this one to your specific facts, citing the cases as it reasons. General information, not a guaranteed outcome or legal advice.
Every statement above is drawn from the published decision. Read the original here:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2010/2010fca0770Want more cases like this?
FairWork Mate tracks Fair Work Ombudsman, Fair Work Commission and Federal Court decisions across Australia. The AI advisor answers plain-English questions grounded on the full corpus — awards cited, industry, penalty amounts and affected employee counts — with a citation to the underlying decision on every answer.
Individual case summaries on this site are free. Full-corpus advisor access is a paid product — Business Solo from $99/mo, 50% off your first 3 months for the first 100 signups.
Get notified on new Fair Work cases
Free email alerts when we publish new underpayment decisions, penalty orders, and workplace law updates.
Free forever. No spam. Unsubscribe anytime.
This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →