The challenge to an employer is to make sure that the workplace is properly managed to diffuse the slightest sign of tension, before it escalates into a physical showdown. In some cases a physical showdown or fight will erupt despite all the best endeavours of an employer. The challenge for the employer is then how to deal with the "warring parties".

Traditionally, an employer is entitled to summarily dismiss an employee for fighting, that is, to terminate a contract of employment immediately without any obligation to make a payment in lieu of notice.

The Workplace Relations Act still permits an employer to summarily dismiss an employee, but an employer should act with caution by investigating fully the facts surrounding any incident. Before an employer decides, who is responsible for the fight, and what sanction to apply, signed statements should be taken from those involved in the altercation and from any eye witnesses. An employee accused of fighting must be given an opportunity to comment on the allegations, and if desired to have a support person present.

Only after an employer has completed its fact finding investigation, should a decision be made as to whether one or both employees have committed misconduct. If an employer concludes that one or more employees has committed misconduct, the employer should warn of the risk of dismissal. If the employer has no alternative other than to dismiss, this outcome must be confirmed in writing, stating the key reasons that have led to this conclusion and why dismissal as opposed to any other sanction is appropriate.

An employer, who has conducted a fact finding investigation to arrive at a considered conclusion, will be far better placed in defending an unfair dismissal claim than an employer who made a decision on the spot.

Will this lengthy process still apply once the anticipated exemption from unfair dismissal laws take effect for workplaces with fewer than a hundred employees, or if an employee is casual or still serving out their probationary period of employment?

Our advice is that an employer must still apply the same thorough procedure because:

• the fight may be as a result of workplace bullying, which is an occupational health and safety issue. Under the Occupational Health and Safety Act a director as well as the employer can be personally prosecuted for breaches of occupational health and safety obligations.
• an employee may have physical or psychiatric injuries leading to a WorkCover claim under the Accident Compensation Act.
• the fight might have been motivated by a ground of unlawful discrimination such as sex, race, age, disability or any of the other grounds, in which case a claim may arise under either State or Federal anti-discrimination legislation, in which an individual employee can be named as a party as well as an employer.

In each of these cases, a swift and fair investigation by an employer will help in defending any of those claims.