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, the Applicant, Antonio Taito, and Phil Passmore, 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.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2010/2010fca0770Send your details to Liquid Employment Lawyers
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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