AFL coach’s unfair dismissal claim shot down for second time

An umpire and umpire coach with 39 years of service has been dealt a second blow by the Fair Work Commission after failing to achieve an unfair dismissal.

The employee was first dismissed on 8 May 2025 after a member of the public reported being physically accosted by the applicant after attempting to jog around an oval during an active training session.

The jogger claimed the applicant first attempted to stop the jogging by physically blocking the path, before grabbing one of their shoulders and then shirt, pushing them towards a gate approximately 40 metres away. The applicant said they called out to two other AFL workers to assist, who proceeded to apologise to the member of the public and escort them off the field.

Following an internal investigation, the AFL stood down the employee with pay on 15 April and, the next day, sent an allegation letter that requested their presence at a meeting on 22 April.

In a letter on 29 April, the AFL informed the employee that certain allegations had been substantiated, including “offensive, intimidating and abusive verbal language”, including “p-ss off” and “f-ck off”, and “threatening, intimidating and aggressive physical behaviour”.

Despite claiming the individual made verbal and physical exchanges, the letter said the behaviour “does not justify or excuse your conduct” and that the misconduct breaches AFL’s policies and the employment contract.

After submitting a written response and two character references, the applicant attended another meeting with AFL representatives on 6 May, followed by an outcome meeting on 8 May, during which the employee was informed of their termination.

A termination letter dated 9 May was also provided.

The individual applied for an unfair dismissal on 29 May, with Fair Work Commission deputy president Bryce Cross finding the applicant “exhibited a tendency to minimise the severity of his conduct by incorrectly characterising his actions on 8 April 2025” but that the member of the public also “made various contradictory statements”.

A dispute also emerged over which piece of evidence was the best “of what occurred” – the events as noted by the applicant or the CCTV.

The applicant also made claims that the AFL exhibited improper and unfair process and substantial unfairness, did not provide relevant training, did not consider their safety, employment record, age, loyalty and recognition of errors, and did not suggest alternative employment.

However, Cross ultimately found that the applicant's conduct and willing participation merited the AFL's response, and their procedure deemed as valid, justified and proportional.

In appealing the unfair dismissal, the applicant questioned whether the original ruling considered matters of self-defence and provocation.

The applicant submitted that they, as the most senior AFL umpire coach present at the training session, were responsible for the safety and security of all persons present, and were authorised under the oval’s “Conditions of Entry” to evict any threat to this. In this way, the applicant noted the deputy president oversimplified the incident.

In addition, the applicant alleged that the AFL did not identify that it was proceeding on the understanding that they escalated the altercation unprovoked, and did not give them a chance to analyse the CCTV footage. It was also submitted that two prior incidents relating to the AFL’s senior people business partner were misconceived.

Finally, the applicant claimed the deputy president failed to consider that the AFL’s Codes of Conduct were applicable across players, clubs and officials, providing allegedly important context to the “compatibility of treatment of others such as played by the AFL”. In this way, it was claimed that the failure to refer to this constitutes a “constructive failure of jurisdiction under ss 385 and 387 of the Fair Work Act”.

The applicant sought a dismissal of the decision and a redetermination, reinstatement, and renewal of his contract, as well as remuneration.

The AFL submitted that permission to appeal should not be granted because it is “not in the public interest to do so” and there was “no significant error of fact in the deputy president’s decision”. Similarly, the AFL said the applicant’s contract was due to expire on 20 September 2025, and this end of employment was “fatal to his appeal and to his request for permission to appeal”.

In consideration of the appeal and right to appeal, FWC vice president Mark Gibian, deputy president Theresa Dobson and deputy president Judith Wright noted an appeal against a decision from a member of the commission may only be made with the commission’s permission under s 604(1) of the act or under 604(2) if it is in the public interest to do so.

While “it will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated”, the bench concluded: “We are satisfied that it is appropriate to grant permission to appeal in the present matter” due to the grounds of appeal giving rise to “arguable grounds of error”.

The applicant’s long period of employment and significance as an umpire and coach were considered, as well as the circumstances of the fight, including whether the terminated employee was provoked, and the need to establish and retain discipline among employees.

The full bench concluded that the appeal was in the public interest, but due to no finding of error by Cross, the appeal was dismissed.

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