‘Show me the money’: Fair Work tests self-defence argument in workplace squabble

A long-time employee of a tissue manufacturer was unsuccessful in his unfair dismissal claim, despite allegations that his physical assault of a colleague was in self-defence.

Jamie Ngoc Tran saw his 17-year employment from ABC Tissue Products terminated on 29 July 2024 after allegedly assaulting Sieng Khantey, who, Tran claimed, attempted to take money from his pocket.

Khantey was alleged to have put his hands in Tran’s pockets multiple times in search of money to borrow or to pick-pocket, according to Tran’s witness statement.

According to Tran, he pushed Khantey away by the chest to prevent Khantey from touching him further and to protect his wallet.

Tran further alleged that Khantey had previously made false claims to their supervisor that Tran had damaged the fridge and breakroom furniture while wielding a knife.

After the alleged incident, Tran was asked to write a statement by the night-shift manager. He also claimed to have not been informed of his right to a support person during the process.

In opposition, Khantey claimed that he had been approached by Tran, who allegedly asked if he had any money, to which Khantey said he did not and jokingly patted his own pockets to show he had no money.

Khantey also claims to have jokingly reached for Tran’s pockets, saying words to the effect of “you got no money, show me the money”, furthering that Tran started to take an aggressive tone and called him names.

After bringing up the fridge and microwave allegation, Tran punched Khantey in the chest with a clenched fist, the latter alleged.

Tran was pulled into a meeting a day later and reportedly advised to bring a support person.

It was alleged that Tran told a night-shift supervisor his termination would “kill his family”. He later rescinded this claim to clarify he would not be able to buy food, and that would kill his family.

Having determined Tran’s response was unsatisfactory, his version inconsistent with other witness accounts and CCTV footage, and that he had potentially provided false information in his response, Tran was terminated.

In considering the nature of the alleged assault, Fair Work Commission deputy president Judith Wright said: “As the CCTV footage does not show the point where Tran makes contact with Khantey … I find that it is more accurate to describe Tran’s action as hitting Khantey with an open hand rather than pushing him.”

She also said: “The gesture was an aggressive [one], not a defensive one.”

Tran’s further allegations of procedural unfairness, coercion and threats of police involvement in the signing of a translated statement, and the dismissal in question as relating to a prior compensation claim and management animosity against him were ultimately not enough to sway Wright in her decision.

She did acknowledge “there were many aspects of the termination that were procedurally unfair”.

Wright said: “Ultimately, I find that ABC did not unreasonably refuse to allow Mr Tran to have a support person present to assist at discussions relating to the dismissal; however, I have some concerns about the procedural aspects of the disciplinary process.”

This included a failure to notify Tran ahead of a meeting following the event that dismissal was a possible outcome, a failure to contact Tran’s union – which may have provided assistance and advice – a failure to use an accredited translator, and a failure to provide the CCTV footage to Tran during the aforementioned meeting.

However, the deputy president said: “I do not think that the absence of these procedural deficiencies would have produced a different outcome.”

Want to see more stories from trusted news sources?
Make HR Leader a preferred news source on Google.