“A reasonable employer … would ordinarily question whether there were any underlying issues or surrounding circumstances which explained the behaviour.”

That observation from Deputy President Wright sits at the centre of a recent Fair Work Commission decision where serious workplace misconduct was accepted, yet dismissal was still found harsh and unreasonable, with reinstatement and partial backpay ordered (subject to offsets and a conduct-based reduction).

For experienced workplace relations practitioners, the case is not notable because it excuses misconduct, it does not. It is notable because it illustrates how disciplinary decisions are ultimately judged: not only on whether conduct occurred, but on whether the employer’s judgement, investigation rigour and cultural awareness withstand scrutiny.

Background and key players

The worker was employed in a field-based operational role at a regional depot and had approximately 16 years’ service at the time of dismissal.

The relevant workplace dynamic involved the worker and a colleague in a supervisory/leading hand capacity. Their working relationship had experienced periodic tension, including a prior incident some years earlier involving abusive remarks that were recorded but not formally investigated.

A senior operational supervisor attended the relevant meeting and prepared contemporaneous notes that later became important evidentiary material.

Events leading up to the incident: “banter”, an old grievance and acute personal stress

The day before the incident, a group chat exchange about vehicle collection duties reignited underlying tensions. The worker described the exchange as workplace “banter”, although it drew on prior sensitivities about perceived criticism.

This occurred against a backdrop of significant personal stress:

• The worker had recently learned a close family member’s cancer had worsened.
• Another close relative had entered palliative care shortly before the incident and passed away days later.

The Commission later accepted these factors likely contributed to the emotional context of the incident and should have been treated as meaningful mitigation.

The toolbox meeting incident: disputed words but accepted misconduct

At a routine workplace meeting the following day, the worker used offensive language toward the colleague, made remarks interpreted by some as suggesting they “go outside”, referred to someone needing “a punch in the head”, and, as he exited, directed an expletive remark broadly understood to include his supervisor.

Witness recollections varied materially:

• Some heard a clear invitation to fight.
• Others recalled a more general comment about behaviour inside versus outside work.
• There were differences between phrasing suggesting intent to strike versus a more general expression of frustration.

Despite those inconsistencies, the Commission accepted:

• The conduct was inappropriate and a breach of behavioural standards.
• A reasonable person could interpret aspects of the language as threatening.
• There was therefore a valid reason for disciplinary action.

However, the conduct was also found to be out of character and not premeditated, an important distinction when assessing proportionality.

After the incident: investigation response and the suspension question

Immediately after the meeting, the supervisor prepared incident notes describing the worker as unusually emotional and speaking in a tone “not normal” for him. A follow-up phone call confirmed continuing agitation.

The worker subsequently took leave, accessed employee support services, apologised on returning to work and resumed duties without incident for several weeks.

Notably, he was not suspended. Management supported his continued attendance while the disciplinary process unfolded, despite later reliance on concerns about emotional fitness for high-risk operational work.

For experienced practitioners, this raises a familiar governance issue: where safety risk is relied upon as a significant factor supporting dismissal, interim operational responses should align with that risk assessment. Otherwise, the argument that termination was unavoidable becomes harder to sustain.

Cultural context: when informal norms collide with formal standards

The Commission examined workplace culture at the depot in some detail. Evidence suggested:

• Long-standing personal relationships within a close regional workforce;
• Social familiarity outside work;
• A history of robust language; and
• Inconsistent escalation of prior interpersonal conflict.

Deputy President Wright observed that professional boundaries had at times blurred and non-professional behaviour had been tolerated.

This did not excuse the conduct. However, cultural tolerance can materially influence whether dismissal appears proportionate, particularly where similar behaviour has historically attracted lesser responses.

Why dismissal was ultimately found harsh and unreasonable

While accepting a valid reason for disciplinary action, the Commission concluded dismissal was harsh and unreasonable when the broader circumstances were weighed, including:

• Length of service and previously good conduct;
• Evidence the behaviour was uncharacteristic;
• Significant personal stress immediately before the incident;
• Workplace cultural tolerance of robust interactions; and
• Limited evidence that these contextual factors were genuinely weighed in the decision-making process.

The Commission found mitigation had been “either disregarded or given very little weight” and noted a reasonable employer would ordinarily explore underlying contributing factors before concluding dismissal was proportionate.

Reinstatement was therefore ordered, with partial backpay reflecting both unfairness of dismissal and seriousness of misconduct.

Practitioner reflections: judgement, not just process

Cases of this nature rarely turn solely on whether misconduct occurred. They turn on how organisational judgement is exercised.

Experienced ER practitioners typically ask:

• Have we investigated context as rigorously as conduct?
• Does our cultural history support the behavioural standard we now seek to enforce?
• Are interim risk controls consistent with the seriousness later asserted?
• Does documentation reflect genuine consideration of mitigation?

These are not merely procedural questions. They are judgement questions, and they often determine whether a defensible decision becomes an adverse finding.

Governance implications for employers

This decision reinforces several practical risks:

• Cultural tolerance, if unmanaged, can undermine disciplinary authority.
• Investigations that focus narrowly on conduct without context may appear incomplete.
• Documentation must reflect real evaluation of mitigation, not formulaic acknowledgment.
• Consistency between policy, practice and decision-making remains critical.

For organisations operating under “fair and just culture” frameworks in particular, expectations are higher. Those frameworks require active identification of contributing factors, cultural, systemic and human, not simply categorisation of behaviour.

Closing observation

This is not simply a “banter case”. It is a case about how misconduct is assessed in context, and how disciplinary governance can falter when mitigation is treated as peripheral rather than integral.

For practitioners, the message is familiar but worth reinforcing: discipline without judgement creates risk, legal, cultural and organisational. The Commission will often accept misconduct. The more difficult question is whether the employer’s response demonstrates balanced, defensible judgement consistent with its own stated values and policy settings.

Benjamin Hayden Lewis v Essential Energy [2026] FWC 252 (30 January 2026)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 30 JANUARY 2026

Application for an unfair dismissal remedy - valid reason for dismissal - dismissal was harsh and unreasonable - order for reinstatement made.

Savvy HR Services

Savvy Human Resources Consulting Services provides independent workplace investigations to a high standard of procedural and substantive fairness, intellectual rigour and sensitivity.

We use our Human Resources Consulting know-how and investigation experience to support clients to deal with informal complaints through to conducting formal site-based investigations. Learn more ...

Savvy’s trauma informed approach to workplace investigation and workplace mediation processes will assist employers to manage the risks of psychosocial hazards that might arise for participants that have experienced trauma.  

Savvy HR is a specialist consultancy with extensive experience conducting workplace investigations of sensitive matters ranging from informal complaints to complex allegations of harassment and bullying that might escalate into WorkCover claims or Fair Work Commission (FWC) matters.

For workplace consulting, employment advice, employment relations support Ballina, Brisbane & Sydney contact Savvy HR.

For Human Resources Consulting Gold Coast Human Resources Ballina Human Resources Sydney contact Savvy HR.

Prohibition on republication: No part of this publication may be copied or reproduced without the written consent of Savvy Human Resources Associates Pty Ltd (SAVVYHR).

Disclaimer: This publication is provided in good faith by way of general guidance only to assist employers and their employees and is for information purposes only. It is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. The Information may be based on data supplied by third parties. We do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances. Savvy Human Resources Associates Pty Ltd & SAVVYHR do not accept responsibility for any inaccuracy and is not liable for any loss or damages arising either directly or indirectly as a result of reliance on, use of or inability to use any information provided in this article.