Employment Terminated For Assault - But Was It Self Defence?

Mr Cutrali (the Applicant) was an employee of 12 years service with Chubb Security Services Limited (the Respondent) when his employment as an Amoured Vehicle Officer (AVO) was terminated for assaulting another employee. An unfair dismissal application (Mr Duilio Cutrali v Chubb Security Services Limited) was filed with Fair Work Australia.

The Applicant claimed he was acting in self defence when he pushed the other employee away and then grabbed him by the throat and forced him against a vehicle whilst holding his throat. The Applicant also submitted that the Respondent had a history of tolerance of physical altercations.

The Applicant called witnesses who submitted that the Applicant was acting in self defence and that the other employee had provoked the Applicant and was an aggressive man. Deputy President (DP) McCarthy noted his concern with what was considered to have been exaggerations and unreliable, if not convenient, memories of the Applicant’s witnesses. DP McCarthy also did not find the Applicant as being particularly credible.

The Respondent submitted that the Applicant’s conduct needed to be considered in the context of a number of employees carrying firearms at the time of the incident.

It is noted that whilst DP McCarthy considered the initial push by the Applicant as inappropriate - it was not considered as misconduct. However, on consideration of the evidence presented - it was determined that the Applicant had not acted in self defence - that the Applicant could have walked away and further Even if there had been a threat to the Applicant it did not continue beyond his pushing [the other employee] away. DP McCarthy also considered that the degree of force was considerable and that the Applicant whilst shorter than the other employee appeared to be a strong man.

DP McCarthy agreed with the respondent that the conduct needed to be considered in light of employees carrying firearms and the need for the Respondent to have confidence that people who carry firearms will be controlled in their behaviours and responses to incidents.

It was found that there was a valid reason for termination and that the Applicant was informed of the reason and had an opportunity to respond. The dismissal was not considered harsh, unjust or unreasonable.

The application was dismissed.