Commission upholds dismissal of employee for unacceptable conduct committed after-hours

The Fair Work Commission has upheld the termination of an employee dismissed for misconduct occurring outside of normal working hours following complaints from several co-workers.

The female employee, Ms J, had been employed since 12 March 2019 as a FIFO Production Technician by OS MCAP Pty Ltd (OS MCAP) at their Daunia mine site in Central Queensland. She worked a roster of one week on and one week off and flew each swing from Brisbane to Moranbah.

The first incident occurred on 18 July 2023, when Ms J arrived at the Brisbane airport for her scheduled flight in an intoxicated state and proceeded to continue drinking in the Qantas lounge.

Whilst in the lounge, she approached a group of co-workers, one of whom was Mr G. After a brief conversation with him, she turned her back to him and rubbed her body up against his.

OS MCAP found this contact amounted to harassment.

The second incident occurred during the flight to Moranbah, where she was seated next to another male co-worker, Mr P. After initially leaning on him, she placed her head near his lap, grabbed his arm and tried to hold hands with him multiple times.

OS MCAP found this conduct amounted to sexual harassment, consistent with the company’s Code of Conduct, Charter Values and the Operations Services Employee Handbook.

The following day, Ms J self-identified that she may have been impacted by the effects of alcohol and notified her supervisor that she was not fit to commence her shift. She then left the site and commenced a period of five weeks leave.

Upon her return to work, OS MCAP undertook an investigation. It was revealed that Ms J had recently ended a long-term relationship and indicated she had been self-medicating with alcohol, for which she had sought treatment during her period of leave.

Although there were some inconsistencies in evidence before Commissioner Sharon Durham, she accepted that Ms J had been extremely intoxicated in the airport lounge area and had acted inappropriately both in the lounge and on the plane.

The Commissioner dismissed her submissions that the incident at the airport was not work-related, noting that “it is well established that out-of-hours conduct can be a valid reason for dismissal where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee … (her) conduct in the Lounge was likely to do all of these things”.

The Commissioner also accepted that Ms J had acted inappropriately towards a co-worker during the plane flight, providing further grounds for disciplinary action.

Commissioner Durham added, “I further note OS MCAP’s submissions about their obligations to protect the health and safety of its workforce and their legislated positive duty to eliminate sexual harassment in the workplace”.

Finding the decision to terminate not to be harsh, unjust or unreasonable, the application was dismissed.

EJ v OS MCAP Pty Ltd (U2024/386) 2 October 2024

For queries about misconduct, behaviour outside work, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 469.1024