A recent Fair Work Commission decision to uphold a mineworkers’ dismissal after he punched a supervisor in the face and made offensive comments to a female colleague at a work Christmas function is timely with this year’s festive celebrations upon us.
Deputy President Ingrid Asbury upheld the sacking of a BHP mineworker who was dismissed in January after an internal investigation found he and another BHP employee engaged in a verbal and physical altercation with a supervisor at a company Christmas party last year.
BHP’s investigation found that the employees punched the supervisor several times injuring his nose and forehead. One of the employees was also found to have made offensive comments to a female colleague during the event, held at a local bowls club, asking if she had “fake tits” and telling her that she could not work with his crew unless she had breast implants.
In dismissing the mineworkers, BHP found the behaviour of both men at the work event amounted to misconduct and serious breaches of BHP’s Charter Values and Code of Conduct, in that they failed to meet its respect, harassment and bullying obligations.
The workers subsequently filed applications for unfair dismissal.
While admitting their involvement in the altercation with the supervisor, the employees contended that when they attended the bowls club on 6 December 2018, they did not know that they were attending a work-related function.
Both of the workers asserted their belief that at the time they attended the event, it was a regular social event arranged between employees working a particular shift roster, known as “pyjama night.”
Christmas party or not, behaviour constitutes valid reason for dismissal
Deputy President Asbury had to first determine whether the event was in fact a work Christmas party. When weighing up the significant financial contribution BHP made for food and transport to the venue and the presence of 60 employees and around 30 family members, she was satisfied that the Christmas party was a work function. She also said that the insistence of the two men that the event was not work related was ‘of great concern’.
DP Asbury then had to consider whether both men were involved in the physical altercation with the supervisor at the event. She was satisfied on the balance of probabilities that both employees engaged in a verbal altercation with him. However, the physical altercation was a bit more complex. There were differing views from witnesses, the defendants and the BHP investigation as to what actually occurred in relation to the physical altercation, as the supervisor had little recollection of what happened due to his intoxication.
DP Asbury concluded that it was unlikely the second employee punched the supervisor as there was clear evidence that when the supervisor was hit, the second employee and the supervisor were both holding the front of each other’s shirts. Based on the witness evidence and his own admission, DP Asbury concluded that it was most likely the first employee who punched the supervisor.
The first employee admitted to punching the supervisor, claiming he had done so in defence of his colleague. DP Asbury found the severity of his conduct was heightened by the fact he knew the supervisor was intoxicated and that he had previously made comments questioning the supervisor’s presence at his crew’s Christmas celebration which were calculated to antagonise the supervisor.
DP Asbury concluded the first employees’ conduct at the Christmas event on 6 December 2018 constituted a valid reason for dismissal. Despite the employee’s contention that he didn’t know he was attending a work event, DP Asbury said that even if the Christmas party was not found to be a work event, the “pyjama night” drinks involving a group of employees of the Company are sufficiently work related. She went on to conclude that a physical altercation in such circumstances is covered by BHP’s Code of Conduct and Charter Values and therefore it is also arguable that this would constitute a valid reason for dismissal.
In regards to the second employee, while his conduct in the verbal altercation was deemed to be inappropriate, the physical altercation was the only reason given by BHP for his dismissal and due to the lack of evidence supporting that claim, he was reinstated.
Implications for employers
This decision is a timely reminder as we head into the festive season that employers need to make it clear to all employees that Christmas parties are work events and therefore company policies do still apply. Employers should email employees prior to the event to remind them of their obligations when attending social functions and reinforce the expected standards of behaviour.
It is important that you review your current policies to ensure they address the expected standard of conduct for all employees when attending work events. Employers should make sure that their sexual harassment, bullying and discrimination policies extend to behaviour at social functions and that employees are aware of this.
Even with the most rigorous preparation, communication and policies and procedures in place, alcohol combined with a party atmosphere increases the likelihood of an untoward incident occurring. Employers are reminded that if an incident does occur at a social function it is vital to act quickly to investigate complaints and take the necessary disciplinary action in line with company policies and procedures.
AMMA members requiring assistance with these procedures are encouraged to contact your local AMMA office.
AMMA’s experienced consultants are available to provide advice on all disciplinary or dismissal issues to ensure you follow best practice and avoid an unfavourable decision should the matter end up in the Fair Work Commission. Our team is also on-hand to assist in implementing and/or reviewing existing policies and procedures to ensure they are best practice and support a safe and healthy work environment, including during end-of-year festivities.