'Pyjama' party fight triggers double sacking


'Pyjama' party fight triggers double sacking

The behaviour of two BHP workers at a function was 'offensive, insulting, intimidating, malicious and humiliating', a tribunal has found.

Two workers involved in an altercation at a BHP Christmas party were dismissed, with one later being reinstated by the Fair Work Commission.

In an internal company investigation in January 2019, the two BHP mine operators were found to have punched a BHP supervisor in the head and face several times at an event hosting about 60 employees and their families in December 2018; with the first mine operator also found to have made offensive comments to a female employee asking whether she had “fake tits”.

The two workers then both applied to the commission for unfair dismissal claiming that the event was not a work-related function, but a regular “pyjama” event held when the crew switches from day shift to night shift.

Deputy president Asbury did not accept that the workers did not know the function was work related, nor did she accept the extent of their knowledge would excuse their conduct. She also stated that the behaviour of both mine operators was “offensive, insulting, intimidating, malicious and humiliating.”

Misconduct of miners

The initial BHP investigation found that the fight began when the mine operators had gotten into an argument at the bar with the supervisor, questioning whether he and his co-workers should be in attendance, with the second operator telling him to “f*ck off”.

The investigation found that the supervisor had then pushed the mine operators, before both of them punched him at least once, injuring his nose and forehead. The fight had then been broken up by other attendees at the function.

The first mine operator had also been found to have asked a female employee whether she had “fake tits”, claiming “all the girls have them, you can’t come to [excavator] strip 44 unless you have fake boobs”.

BHP subsequently fired both mine operators for misconduct and breaches of policies in relation to respect and harassment and bullying.

In the FWC, the first mine operator conceded he made the inappropriate comment, but immediately apologised to the female worker; and also that he did punch the supervisor, but only in defence of the second mine operator. He did not feel his dismissal was fair given that the event did not have a connection to his employment with BHP.

The second mine operator denied punching the supervisor during the altercation, stating that he also didn’t know that he worked for BHP. He claimed he had not breached any BHP policies as the event lacked the requisite connection to his employment, and also asserted that the investigation process undertaken by BHP was unfair, meaning he was unable to discuss the event with anyone and therefore couldn’t properly defend himself by gathering sufficient evidence.

Lack of evidence

The commission found that the first applicant’s behaviour was not reasonable response to events nor an attempt to defend the second applicant from assault, making his dismissal procedurally fair.

DP Asbury stated there was “no excuse” for the punch, particularly when he knew the supervisor was “intoxicated”.

The FWC couldn’t find sufficient evidence that the second mine operator did actually punch the supervisor, and therefore deemed his behaviour not serious enough to warrant dismissal, despite it being “totally inappropriate”.

The deputy president was satisfied that his reinstatement would not undermine behavioural standards at BHP, and ordered he should be reimbursed lost remuneration. This amount was reduced by 75% due the fact he had engaged in inappropriate behaviour during the evening and also had not taken sufficient steps to mitigate loss of employment since.
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