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Out of hours conduct a sufficient reason for employee dismissal, FWC rules

16 February 2022

#Workplace Relations & Safety, #Workplace Relations for Employees

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Out of hours conduct a sufficient reason for employee dismissal, FWC rules

In a recent decision of the Fair Work Commission (FWC), Deputy President Melanie Binet (DP Binet) upheld the dismissal of a Westpac Banking Corporation (Westpac) Senior Relationship Manager (Applicant) for out of hours conduct, despite an unblemished 35-year tenure and deemed the circumstances of the dismissal “catastrophic”.

John Keron v Westpac Banking Corporation [2022] FWC 221

On 10 March 2021, all Western Australian Westpac business banking staff were required to attend a compulsory professional development day (Workshop) at Optus Stadium. The Workshop was organised by Westpac and was attended by approximately 160 employees.

Following the Workshop, Westpac organised a networking event (Sundowner) for all attendees at The Camfield, a nearby pub, from 4:30pm – 6:30pm. Though most of the 160 attendees at the Workshop attended the Sundowner, it was not compulsory.

At the Sundowner, each employee was given a wrist band that identified them as a Westpac guest and enabled them access to free drinks and finger food.

After the conclusion of the Sundowner at 7:00pm, the Applicant and a small handful of other employees stayed around and continued to socialise.

Throughout the evening, two incidents occured, which subsequently led to the Applicant’s employment with Westpac being terminated.

Incident One – indecent assault

At approximately 9:45pm, after consuming approximately 10 alcoholic drinks over roughly five hours, the Applicant placed his hand in the middle part of a female colleague’s (Colleague A) lower buttock and “in an intimate manner then moved his hand upwards towards her waist”.

Incident Two – verbal abuse

After Incident One, the Applicant and remaining Westpac employees visited the nearby Crown Casino.

While the Applicant and a male colleague waited in line to gain entry to the Casino, a female colleague (Colleague B) exiting the Casino commented to security to “not let these guys in”.

Later in the evening, the Applicant ran into Colleague B and said to her, “you fucking idiot. Why did you do that?”, “you are a whore” and “you are a bitch”.

(collectively, the Incidents)

Investigation by Westpac

The following day, Colleague A reported Incident One to her line manager, and later the police.

As a result of the complaint, Westpac commenced an investigation (Investigation). As part of the Investigation, Westpac conducted a number of telephone interviews with other employees who were present at the time of Incident One. During these telephone interviews, Colleague B reported Incident Two.

Following the telephone interviews, the Applicant and a support person attended a meeting with various Westpac superiors in which the Incidents were put to him. The Applicant provided an initial response to the Incidents on 23 March 2021 and a further response on 25 March 2021.

On 8 April 2021, Westpac finalised the Investigation and issued a report (Investigation Report).

The Investigation Report substantiated Incident One and partially substantiated Incident Two. The Applicant was found in breach of a number of Westpac’s policies, including the Discrimination, Harassment and Bullying Policy, Sexual Harassment Policy and Code of Conduct.

Termination of employment

Despite the Investigation Report recommending that the Applicant be issued with a “show cause letter”, Westpac terminated his employment based on serious misconduct, effective close of business on 13 April 2021.

FWC’s decision

After hearing the matter on 4 February 2022, DP Binet published her decision on 8 February 2022 and found that:

  • the Applicant was protected from unfair dismissal pursuant to section 382 of the Fair Work Act 2009 (FWA)
  • the Applicant was dismissed pursuant to section 385 of the FWA
  • the dismissal was not a case of genuine redundancy pursuant to section 389 of the FWA
  • Westpac was not a small business employer within the meaning of the FWA, and as such, the Small Business Fair Dismissal Code did not apply
  • the Applicant’s application was made within the required timeframe pursuant to section 394(2) of the FWA
  • having considered and given weight to the factors pursuant to section 387 of the FWA the dismissal was not harsh, unjust or unreasonable.

Overall, DP Binet was not satisfied that the Applicant was unfairly dismissed pursuant to section 385 of the FWA.

Arguments at hearing

At the hearing, the Applicant argued that Westpac did not have lawful grounds for dismissing him given the Incidents occurred outside of hours, in his own time, that no working relationship existed between him and Colleagues A and B, and there was no connection with his work.

He further argued, with respect to Incident One, that his actions were not “unreasonable, uninvited, unwanted or unwelcome” and they did not breach Westpac’s policies.

In relation to Incident One, DP Binet found that the Applicant’s conduct “appears to have been a direct consequence of his alcohol consumption” and that it “would appear with his judgement clouded by alcohol” he “thought his actions would not be unwelcomed”.

Further, DP Binet found that by attending the Sundowner, the Applicant was put in a situation of proximity and the conduct that “occurred on the border between a work-related event and private activities” was therefore sufficiently connected to the employment and warranted dismissal.

Contrastingly, there was no sufficient connection between employment and Incident Two.

In her decision, DP Binet was particularly scathing of Westpac’s venue choice and its decision to provide “…unrestricted access to alcohol for more than two hours” without making sure employees departed and got home safely. She urged Westpac to consider the necessity and appropriateness of alcohol at work-related events “given the poor judgement often associated with the consumption of alcohol”.

Given the nature of the Applicant’s conduct, DP Binet emphasised the bar as to what “constitutes consent for physical and sexual interactions” has been raised in the broader community with an even higher bar set “for interactions occurring in work-related environments”. Due to extensive media coverage and social discourse, those in workplaces have been put on notice “that their behaviour will attract greater scrutiny and face higher standards than in the past”.

Key takeaways for employers and employees

  • For employers – consider the necessity and appropriateness of alcohol at work-related events. Always ensure employees can leave safely after work-related events that involve alcohol.
  • For employees –  depending on the circumstances, out of hours conduct or behaviour may have a sufficient enough connection to employment to warrant disciplinary action, up to and including dismissal.

If you have any questions about this article or any workplace issues, please contact us or send us your enquiry.

Authors: Rachel Drew 

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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