Out-of-hours misconduct: dismissal 'harsh' as employer ignored own policies

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Out-of-hours misconduct: dismissal 'harsh' as employer ignored own policies

Dismissing a worker for out-of-hours misconduct was harsh and unjust because the employer hadn't followed its own policies, the Fair Work Commission has ruled.

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A worker earning $236K a year has won reinstatement and back-pay after being fired for out-of-hours misconduct. 

Mr C was dismissed for having a 15-30 minute argument with his partner in the privacy of a hotel room. He had paid for and organised the trip separately of his employing company.

His partner, who worked for the same company, was given a warning for the same conduct. 

Background


Mr C was employed by Bechtel Construction Australia as a rigger on the $29 billion Wheatstone Liquefied Natural Gas project in Western Australia. Bechtel is a sub-contractor of the project owner, builder and operator, Chevron. 

Wheatstone is a remote project and is located about 1400 km north of Perth by road. It is about 12km south of Onslow, the nearest and most accessible destination for off-shift workers.

There are only about 500 permanent residents in Onslow and more than 10,500 workers at Wheatstone. About 7300 to 7500 of the workers are on site at any given time.

Given the sensitivities between the Onslow community and the large companies working at Wheatstone, along with the size differences between the Onslow and Wheatstone populations, the companies are “committed” to having the least possible negative impact on Onslow.  

Policies, misconduct and serious misconduct


Mr C started work with Bechtel in January 2016. His offer of employment required compliance with company policies, including the company code of conduct – which he also signed, separately, one month later.  

Clauses in the policy state that various acts could constitute misconduct or serious misconduct which would jeopardise his continued employment. Examples included engaging in drunken or noisy behaviour, or causing a nuisance or disturbance to others.

An example of serious misconduct was fighting, offensive or violent behaviour of any form including “in response to actions of another”. 

The incident


Mr C checked into the Onslow Sun Chalets one Saturday in September 2016 with his long-term partner Ms H, who was also a Bechtel employee. Both checked-in wearing their Bechtel uniforms. They spent all afternoon and evening watching football and drinking.

By 11:45pm the couple were back in the chalet and there was an argument. Accounts differed greatly as the intensity and duration of the argument, however Commissioner Williams determined that it lasted for 15-30 minutes, was loud and aggressive and was enough to disturb, and alarm, chalet guests in adjacent rooms. Ms H left the room but she returned 30 minutes later and they carried on drinking together. 

The hotel manager was unhappy and the following morning she emailed the Chevron community relations team to complain about the couple specifically and about Wheatstone workers generally. 

Investigated… and fired


Bechtel was informed, carried out a workplace investigation and fired Mr C, who then brought a case before the commission seeking a finding of unfair dismissal. Ms H was only given a final written warning because the investigators felt that she was a “victim” rather than an instigator of the disturbance.

Valid dismissal for breaching company interests


It was held by commissioner Williams that failure to comply with codes and directions could form a valid reason for dismissal. 

The commissioner noted Mr C signed a contract that expressly required him to comply with, and accept, the company’s policies. 

The unusual circumstances of Wheatstone meant that out-of-work misconduct by its staff in Onslow could be damaging to the company’s interests. Accordingly, the company’s policies were reasonable in those specific circumstances in their intrusion into the private lives of employees.

Company failed to apply its own policies


The language of the policy stated that a single act of misconduct would not result in the termination of employment although a single of act of serious misconduct would. 

Mr C’s shouting and arguing was held to be misconduct but was not “serious misconduct” because the company’s code had specifically stated “drunken behaviour in public that causes a disturbance or a nuisance to others” as an example of misconduct. Mr C’s employment should not therefore have been terminated for a single act of misconduct.

“In the same way Bechtel seeks to hold [Mr C] to the terms of its community code so should they as the employer be held to the terms of the community code,” the commissioner held.

The differential treatment by Bechtel of Mr C and Ms H was then examined. The commissioner noted that differential treatment of comparable cases could render harsh what would otherwise be a valid dismissal.

Bechtel argued that the more lenient treatment of Ms H was fair as she was, in their opinion, “more of a victim, than an instigator of the disturbance”.

Bechtel’s policies specifically stated that it would not tolerate offensive behaviour in any form including “in response to the actions of another”. The commissioner concluded that Bechtel’s principles were to hold both participants of offensive behaviour equally accountable. But Bechtel instead decided to apportion blame. 

“Bechtel’s conclusion that [Ms H] was more of a victim and [Mr C] was the instigator was wrong. The evidence supports the conclusion that they were each equally responsible for the disturbance that occurred. Their conduct was properly comparable. Consequently equal disciplinary action would have been expected. Bechtel’s decision instead to terminate Mr C’s employment when Ms H received only a final written warning for comparable conduct was therefore harsh,” the commissioner said. 

It was therefore held that Mr C’s dismissal was for a valid reason but, in the circumstances, it was both harsh and unjust. 

Remedy


Mr C sought reinstatement under s390 of the Fair Work Act and this was opposed by Bechtel on the grounds that it has lost trust and confidence in Mr C. 

The commissioner ruled reinstatement was appropriate as the misconduct occurred exclusively outside of work and the character of the misconduct did not pose any barrier to Mr C carrying out his workplace duties.

An order for reinstatement and back pay was made.

JC v Bechtel Construction (Australia) Pty Ltd (U2016/11871)
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