The Fair Work Commission (FWC) has recently ruled that the sacking of a team leader by the Leighton Boral Amey Joint Venture (LBAJV) was unfair, despite the fact that he engaged in several acts of misconduct and sexual harassment at a work party.
The case raises vital questions for employers about ‘out-of-hours’ conduct and the fairness of any disciplinary procedure in dealing with inappropriate workplace behaviour and unfair dismissal.
The FWC found that, at the party, the team leader for the LBAJV told a company director to ‘f–k off’ when he attempted to join a conversation, issued the same directive to a senior project manager, asked a female colleague for her phone number and said to another, ‘Who the f–k are you? What do you even do here?’
When the party ended he accompanied some colleagues to the venue’s public bar, where he spoke crudely to female colleagues, describing one as a ‘stuck-up b-tch’ and kissing another on the mouth, telling her he was going to go home and dream about her.
On the way to a separate venue he told another colleague that it was his ‘mission’ to find out the colour of her underwear.
When he returned to work in January, he was dismissed for two counts of sexual harassment – the intimidation and phone number request of one colleague, and the after-party kissing of another – and eight counts of misconduct.
The finding of unfair dismissal
Although the FWC found that the factual basis for these incidents could be established, the dismissal was unfair. The reasons for this were:
- The FWC could only consider the incidents which had occurred in the hours and the room within which the party was booked. Although the employees of LBAJV had been informed in advance that that its standards of conduct would apply at the function, there was no suggestion of any expectation that those standards would apply to behaviour outside the temporal and physical boundaries of the function.
- It was ‘abundantly clear’ that kissing a colleague fell within the Sex Discrimination Act’s S28A definition of sexual harassment, but as the incident did not occur ‘in connection’ with the team leader’s employment, the employer did not have a vicarious liability under s106(1) and s28B of the Sex Discrimination Act could therefore not render it unlawful or a valid reason for dismissal.
- The period spent by employees in the upstairs bar and out in the street was ‘outside of the workplace’ and outside of working time. ‘Those who gathered there did so entirely of their own volition. It was in a public place. There was nothing in LBAJV’s Code of Conduct or relevant policies which suggested that they had any application to social activities of this nature. . . [the team leader’s] conduct in the upstairs bar was merely incidental to his employment.’
- FWC Vice-President Adam Hatcher said the most serious allegation involved the team leader’s ‘aggressive, intimidatory and bullying behaviour’ towards the ‘much younger and smaller’ colleague of whom he demanded ‘Who the f–k are you? What do you even do here? Although this did constitute a valid reason for dismissal, it was not communicated to the employee and he was not given an opportunity to respond to the allegation, so it could not have been relied upon as a fair reason to dismiss, because there was no procedural fairness.
- The fact that the employee, despite being very intoxicated, was ‘never refused a drink’ at the employer’s function where there was ‘unlimited service of free alcohol’ was also a relevant factor for the Tribunal in deciding whether the dismissal had been fair.
- The FWC also noted the ‘disparity’ in the way this team leader was treated, compared with an earlier unrelated incident in which a LBAJV supervisor was ‘merely counselled’ after an act of sexual harassment in the workplace.
- The team leader is seeking reinstatement to his former position, but a remedy is still being determined.
Key lessons for employers
This case highlights how critical it is for employers to have clear, comprehensive policies about appropriate workplace behaviour, which must specifically address behaviour at work functions, including what conduct will be considered to be ‘in connection with an employee’s employment’. To be able to rely on these policies, the employer must also show that they have been well-implemented through effective training.
Procedural fairness will of course be critical to an employer’s defence to an unfair dismissal claim. Any allegations relied upon by the employer as a fair reason to dismiss must first have been put to the employer and they must have been given an adequate opportunity to respond.
Train your employees on appropriate conduct at work functions
Training employees on appropriate behaviour at work functions is made easy with this short course from Learning Seat. For more information about this course please visit Appropriate behaviour at work parties.