Can an employee be legitimately dismissed for acting in self-defence? This question was put to the test in two recent Fair Work Commission cases. In one case, the employee had his unfair dismissal claim rejected as it was proven he pushed a woman first. He even tried to blame his sacking on a bias against men.
In the second case, the employee had been attacked and bitten by a colleague and responded in self-defence. His actions were considered justified by the Commission, who noted that his employer did not think it was right for him to punch someone even if it’s in self-defence.
Let’s look at the events of these two unfair dismissal cases.
The following events were detailed in the Fair Work Commission case Peng Zheng v Citic Pacific Mining Management Pty Ltd [2025]. Fifty-five-year-old Peng Zheng began working for Citic Pacific Mining Management as an operator maintainer technician in January 2024. He initially worked at the company’s site in Cape Preston, Western Australia. However, in September 2024 he sustained a knee injury at the site, for which he received workers’ compensation. He then began working light duties at Citic Pacific’s office in Perth.
The incident in question took place on the morning of Monday, 16 September 2024 at around 8AM. This was about 15 minutes before Mr. Zheng was due to commence his shift. As he entered an elevator in Citic Pacific’s office, he positioned himself centrally close to the doors. A female building occupant not known to Mr. Zheng, referred to as Witness AB, entered next, followed by a Citic Pacific employee, Mr. Chong. The three individuals had never met each other before.
According to Mr. Zheng’s testimony to the Fair Work Commission, Witness AB questioned why he was standing where he was in the elevator. Angry, she then asked him to move to give her more space, in a hostile manner. Mr. Zheng claimed he told her politely that there was plenty of space and that he would gladly let her pass when she needed to get out.
He said that when she moved past him to exit, she “physically assaulted” him by using her shoulder or elbow. This caused him to lose balance and shift weight onto his uninjured knee. Mr. Zheng asserted that in response he “reached out” in Witness AB’s direction with his left arm. He claimed this was a “natural reaction in self-defence” and his hand “lightly brushed” Witness AB’s shoulder.
He then claimed Witness AB turned around in a manner that made him believe that she wanted to attack again. Mr. Zheng then told Witness AB to leave him alone and swore at her.
Mr. Chong’s account presented a different perspective. He stated that Mr. Zheng’s central position in the lift made it difficult for people to enter and exit. When the lift stopped at level two, Witness AB told Mr. Zheng words to the effect of “you’re blocking my way.” Mr. Chong observed that Mr. Zheng “did not move or say anything,” forcing Witness AB to squeeze past Mr. Zheng to exit the lift.
Mr. Chong’s view was that the contact Witness AB made with Mr. Zheng seemed normal as her intention was to exit the lift. Crucially, he then witnessed Mr. Zheng “push Witness AB hard in the back” and heard him say “F*ck off. Don’t touch me.” Witness AB’s account largely corroborated Mr. Chong’s.
Later that day, Mr. Chong reported the altercation to Citic Pacific. Witness AB also reported the incident to the company the next day. Citic Pacific obtained the CCTV footage of the incident from building management. Mr. Zheng told his employer that Witness AB had pushed him unnecessarily and that he pushed her away in self-defence and told her “f*ck off.” This account notably contradicted his later oral evidence to the Fair Work Commission about merely brushing Witness AB.
Mr. Zheng was then summoned to a meeting with a Citic Pacific manager to watch the CCTV footage. When asked why he pushed and swore at Witness AB, Mr. Zheng said there was enough space for her to get past and that she unnecessarily pushed him. Following this meeting, the manager concluded that Mr. Zheng had breached Citic Pacific’s code of conduct. He recommended dismissal, which was subsequently approved by company leadership.
Mr. Zheng was informed of his dismissal via phone on 24 September 2024, followed by a formal termination letter. Citic Pacific cited “physically aggressive and threatening behaviour” as the reason.
Mr. Zheng subsequently lodged an unfair dismissal claim with the Fair Work Commission. He argued that he was acting in self-defence. He said that he merely “brushed” Witness AB’s shoulder and that “there is no evidence” he intended to harm Witness AB and that he was acting in a preventative measure.
He argued that his conduct occurred outside of work hours and outside the workplace. Mr. Zheng claimed that this meant Citic Pacific’s code of conduct did not apply. He also claimed the company never informed him of its “behavioural expectations.” Mr. Zheng further alleged that the dismissal was a disproportionate response to his conduct and that his swearing was “justified” in the circumstances.
Mr. Zheng also claimed the investigation was “fast-tracked.” He asserted that he was not provided with Witness AB’s statement or other relevant documents.
Mr. Zheng contended that Citic Pacific’s decision revealed a “bias against men,” unsupported by evidence other than the outcome itself. He questioned Witness AB’s credibility, alleging she was motivated by “revenge and/or spite” and that she did not report the incident to police because she knew that she was “not of clean hands.” This claim was factually incorrect as Witness AB had reported it to police.
Finally, Mr. Zheng said that his age, niche career experience and ongoing knee injury would make it difficult to find new employment. He also alleged the “real reason” for his termination was that he was a “financial burden” to Citic Pacific due to his injury.
The Fair Work Commission reviewed the footage and sent a representative to personally inspect the elevator. It found that Mr. Zheng’s evidence to back his self-defence claim was “plainly at odds” with the CCTV footage. The Commission concluded that he “deliberately” pushed Witness AB, with “some force” and then swore aggressively at her.
Witness AB’s contact with Mr. Zheng was considered not deliberate or unreasonable and did not justify Mr. Zheng’s aggressive and intentional response. The dismissal was deemed a proportionate response to “a serious matter.”
The Fair Work Commission concluded that there was a connection between the incident and Mr. Zheng’s employment. It found the elevator was part of or sufficiently linked to the Citic Pacific workplace given its proximity. The fact the incident took place approximately 15 minutes before Mr. Zheng was to start work and that he wore a Citic Pacific lanyard at the time also bolstered the link.
It was also found that Mr. Zheng’s actions damaged the company’s interests as it would not want such conduct associated with its brand. The Commission also did not find any significant flaws in the investigation. It did, however, acknowledge two key procedural shortcomings. Mr. Zheng was not notified of the reason for his dismissal nor was he given a chance to respond to that reason prior to being sacked.
The decision to inform Mr. Zheng of his termination over the phone was deemed “harsh and unreasonable.” His claims of “bias against men” and Witness AB’s “credibility” were dismissed due to lack of evidence or factual inaccuracy. Mr. Zheng’s assertion that the real reason for his dismissal was a financial burden was also not supported by evidence.
While the Fair Work Commission found that the procedural deficiencies in Mr. Zheng’s dismissal were “serious,” it was outweighed by the valid reason for his dismissal. It also noted his complete lack of remorse for his actions. Mr. Zheng’s unfair dismissal claim was therefore rejected.
Read More: Dismissed Worker Who Started Fight Claims ‘Self-Defence’
Another recent case that involved a claim of self-defence is David Weule v Central Queensland Services Pty Ltd [2025]. David Weule began working for Central Queensland Service in July 2022. At the time of his sacking he was working at the company’s coal mining site in Caval Ridge, Queensland.
On the night of 13 June 2024, Mr. Weule was travelling in a light vehicle with two colleagues, Mr. Torcello and Mr. Hurley, when a verbal argument escalated into a physical confrontation. According to the Fair Work Commission’s findings, the incident began after Mr. Weule made a “passive aggressive” comment to Mr. Torcello.
Mr. Weule told him words to the effect of “I think my dozer is sick of cleaning up after your dozer.” The two men then swore at each other, before Mr. Torcello leaned forward and grabbed at Mr. Weule from behind, inflicting minor injuries. This included a bite to Mr. Weule’s left thumb and facial injuries. Mr. Weule testified that he was “scared” while the assault took place.
The vehicle, driven by Mr. Hurley, was stopped on the haul road due to the altercation. Once outside the vehicle, Mr. Weule opened the rear door where Mr. Torcello was seated. The two “tussled” and Mr. Weule punched Mr. Torcello twice before gaining control of his hands. The brawl then ended
Central Queensland Services subsequently dismissed Mr. Weule for serious misconduct. It said his actions breached company policies and the Coal Mining Safety and Health Act 1999. Central Queensland Services also said Mr. Weule failed to take accountability for the fight, which undermined their trust and confidence in him.
However, the Fair Work Commission concluded that there was no valid reason for Mr. Weule’s dismissal. It found that Mr. Torcello was the aggressor and that Mr. Weule acted in self-defence. The Commission determined that Mr. Weule had an “objectively reasonable” basis to feel that he needed to defend himself and that his actions were proportionate.
The Commission also noted that the investigation of the incident was unfair to Mr. Weule. It noted that he was ostensibly given an opportunity to respond to the allegations, but that it was not a “proper opportunity.”
The Fair Work Commission said that the person conducting the investigation, Mr. Everingham, did not keep an open mind. He instead formed an “unshakeable view” of what happened from the outset. It was noted that Mr. Everingham said he was “quite surprised” by Mr. Weule’s stated intention to report the matter to police.
He assumed Mr. Weule’s motive was not genuine but rather about “trying to keep his job.” The Commission found that Mr. Everingham “immediately discounted” the possibility that Mr. Weule wanted to report the incident because he was a victim of an assault.
The Fair Work Commission also noted that Mr. Everingham did not think it was acceptable for a worker to act in self-defence. He said “there’s always options” even if that means “you might have to get punched unfortunately.” This perspective solidified the Commission’s view that Mr. Everingham had a closed mind during the investigation.
The Commission took into account Mr. Weule’s unblemished disciplinary record, his age and the significant impact of losing his job. Ultimately, it ruled that Mr. Weule’s dismissal was harsh, unjust and unreasonable. The Commission said he was “entitled” to act in self-defence rather than allow a co-worker to attack him. It also noted Central Queensland Services’ failure to provide him with a proper opportunity to respond.
The Commission ordered Mr. Weule’s reinstatement, finding it was appropriate given his positive work record and the high regard in which he was held by his supervisors.
Our team can help you make an unfair dismissal claim. Australian Workplace Discrimination Representatives (AWDR) has helped thousands of Australians challenge dismissals. With decades of experience and a strong track record of success, we know how to guide you through the process and fight for the compensation you deserve. Time limits apply, so it’s important to act quickly.
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