In a ruling that highlights the need for employers to follow internal disciplinary procedures, the Fair Work Commission has ordered an employer to pay more than $6,000 in compensation to an employee dismissed for her involvement in a sex toy prank and a risqué onsite photo shoot.

Central Queensland Services (a subsidiary of BHP) dismissed Ms Tara Odgers over two separate incidents of unacceptable workplace conduct.

In the first incident, Ms Odgers taped a butterknife to a sex toy and hid it in her male colleague’s bag before he went through an airport security check.  When her colleague passed through security, his bag was flagged and inspected. The security personnel removed personal items from the bag and revealed the butterknife attached to the sex toy. Ms Odgers, having already gone through the security check, was recording the event on her phone. Ms Odgers maintained that her colleague would not be offended by the prank, and when asked if she thought other people may have found the sex toy offensive she replied, “well, most people have one.”

In the second incident, Ms Odgers and two other women employees posed for a risqué photo in the crib hut at Caval Ridge.  Ms Odgers stood on a table and another woman stood on a chair for the photo, which involved the women posing with their logo-branded work shirts unbuttoned, leaning forward to display their bras and cleavage.  Commissioner Hunt described the photo as “very sensational” and as displaying “a lot of breast”.  The photo was later posted to Facebook, with the employer’s branding and logo identifiable on the women’s work shirts.

Considerations

In its ruling, the FWC found that Ms Odgers had clearly exhibited unacceptable workplace behaviour, and that Ms Odgers had lied during the investigation process.

Despite Ms Odgers’ behaviour providing a valid reason for her dismissal, Commissioner Hunt found the dismissal was unfair because CQS had failed to follow its own disciplinary processes and policies.  Commissioner Hunt emphasised that CQS was required under its enterprise agreement to follow a four-step disciplinary process in its ‘Fair Play Policy’ when assessing policy breaches and was required to adopt measures in a Just Culture Decision Making Tree, both of which the employer failed to do.

Further, the FWC found that when deciding on the appropriate disciplinary outcome, CQS had taken into account prior conduct of Ms Odgers, but that Ms Odgers was not made aware that CQS was including the prior conduct in its decision-making process.

Commissioner Hunt emphasised that CQS’ size warranted a firm position to be taken in relation to the procedural deficiencies, stating, “if a respondent the size of this respondent can’t appropriately marry its investigation findings with its termination letter, what hope do smaller employers have?”

Implications

This decision reinforces that employers need to closely follow their own policies and procedures when dealing with workplace misconduct. Even if an employee clearly has committed a serious breach of workplace policy, neglecting to give the employee a “fair go all around” can undermine an employer’s overall position in relation to the misconduct.

If your company promotes internal disciplinary procedures and processes, consider whether those documents are overly prescriptive – often it is more effective to adopt generalised processes that provide an employer with flexibility to take different approaches to different sets of circumstances.  In this case, the employer’s position was undermined by failing to adhere to the prescription of a Fair Play Policy and a Just Culture Decision Tree.

For advice on unfair dismissal, or any other workplace policy or procedural matters, contact an expert AMMA consultant near you.