I’ve been following the recent Lewis v Essential Energy [2026] FWC 252 ruling, and quite frankly, I struggle to accept the rationale for the decision.
For those who haven't tracked it: An employee with 16 years of service had a massive outburst. He called a colleague a "f---ing dog," threatened to "punch his head in," and suggested he'd see him outside. The FWC found that while this was "serious misconduct" and a "valid reason" for dismissal, the firing was "harsh" because the employee was dealing with immense personal trauma (terminal family illness). They ordered him to be reinstated.
This maybe an unpopular opinion, but I think this ruling is a massive step backward for workplace safety.
Here is why I’m struggling with it:
- WHS Laws are absolute: Employers have a legal obligation to provide a safe workplace for all employees. If a worker makes physical threats, the employer’s primary duty is to the person being threatened. How can you guarantee safety if the person who made the threat is back at the desk next to them a month later?
- Policy Erosion: If "personal stress" becomes a legal excuse for breaking a Code of Conduct, where do we draw the line? Most of us are stressed. Most of us deal with grief. We don't all threaten to assault our colleagues.
- The Precedent: Does this make "Zero Tolerance" policies legally toothless? If an HR department can’t fire someone for an explicit threat of violence without being overturned, how do we maintain a professional culture?
I’m all for mental health support and EAP programs, but I don’t believe mental health should be a "get out of jail free" card for behaviour that makes others feel unsafe.
What do you think? Is the FWC right to prioritise "humanity" and long service over strict policy? Or does this ruling undermine the very safety laws that are supposed to protect us?