An engineer who lost a close relative in the current Israeli-Palestinian conflict was clearly offended when a manager directed him to move his desk into a project “war room”, but his refusal still provided a valid reason for his dismissal, the FWC has found.
The Israel-born engineer began work at Mackay’s D&T Hydraulics and Engineering last August after sending a video showing a technique he had developed for 3D modelling and automation that could be used for its principal business of manufacturing and repairing hydraulic cylinders.
The company hired the engineer partly on the basis that he would over time teach other employees his method, but two months after starting the job he asked to be able to work remotely from Israel in the wake of the Hamas October 7 attacks.
Over two trips in the ensuing eight months, a period during which a close relative died, he spent a total of 123 days working from Israel, before returning to the office in May.
In late May, the engineering team met to discuss how to implement his method, the engineer claiming that it devolved into a “professional argument” about processes, while D&T told Deputy President Nicholas Lake that the engineer became aggressive, questioned other team members’ credentials and asked the engineering manager if he was “against him”.
The following day, the engineering manager told the team he wanted everyone to move their desks into a “war room” to focus on finishing designs for 50 cylinders by the end of June.
“Following the discussion, the team members began to move their desks into the war room except for the [engineer] who indicated that it was not a good idea and [he] did not support the concept,” Deputy President Lake said.
“[He] was offended by the term ‘war room’, noting his connection to the continuing Israel-Palestine conflict.
“[He] reportedly stated, ‘you’re making a big mistake, and I don’t like it, this is not a good idea.”
“Serious and imminent risk”
The engineer had a rostered day off the next day, a Friday, and when the engineering manager saw that he had not moved his desk by the Monday morning he raised his behaviour at the previous week’s meeting and his refusal to move his desk as directed.
“[The engineering manager] states that the [engineer] became aggressive and accused [him] of lying,” Deputy President Lake said.
“[He] told the [engineer] that his behaviour was contrary to company values . . . [and] following a period of argument . . . advised [him] that his employment would be terminated.”
That same day the company’s HR manager emailed notice that he had been summarily dismissed for causing “serious and imminent risk to the health and safety” of his co-workers because of his “aggressiveness”, and for refusing to carry out a lawful instruction to move to the war room.
“Poor phrasing”
Assessing first whether D&T had a valid reason to dismiss the engineer, Deputy President Lake was unpersuaded that he posed an imminent threat to his co-workers and was aggressive to the point they felt unsafe.
“The testimony and evidence indicate the [engineer] was vigorous in his pursuit of his argument and asked very confronting questions to those that argued for the alternative view,” the deputy president noted.
“However, in spite of the robustness of the discussion, there was no evidence there was any personal invective used or personal threats.
“The risk was also manageable.
“The appropriate course of action would have been to send [him] home.”
Concluding that the engineer’s behaviour at the meeting did not provide a valid reason for dismissal, warranting disciplinary action instead, the deputy president turned to his alleged refusal to comply with a lawful and reasonable direction.
“The request for the [engineer] to move his desk was lawful and entirely reasonable.”
“However, calling the room a ‘war room’ was poor phrasing.
“[D&T] was fully aware that [he] had recently returned from Israel.
“[He] was offended by the term, and I find this contributed to his refusal to move his desk.”
Nonetheless, when the “entire factual matrix” was considered – “including his refusal to move his desk, refusal to teach others the Roy Method and the questions that management had about whether his work was achieving the engineering department’s objectives” – Deputy President Lake found the company had a valid reason for dismissal.
“The [engineer] had engaged in a pattern of conduct which demonstrated his unwillingness to work respectfully with his colleagues towards achieving the engineering team’s goals.”
“Hasty investigation”
Turning to procedural fairness, Deputy President Lake observed that the employer summarily dismissed the engineer without giving him an opportunity to respond to the reasons.
“[He] was told by [the engineering manager] on Monday, 3 June 2024 that he was terminated and he was escorted from the building.”
“Immediately, a hasty investigation was instigated by human resources and a termination letter was issued to him late that afternoon.”
While finding the dismissal not unreasonable given doubts about the engineer’s benefit to the company and “fractures” caused by his “belligerent attitude”, the deputy president ultimately ruled it both harsh and unjust.
“The dismissal was harsh given the [engineer] was dismissed summarily following a heated argument where no physical threats were made.”
“[He] was not afforded a proper process where he could have been counselled regarding his approach in the meeting and how he should conduct himself in future meetings.
“This was unjust.”
With reinstatement not sought, the deputy president awarded compensation of $20,000 plus super.
