Employment Law – Out-of-Hours Misconduct Dismissal Too Harsh

Employment Law – Background

In the Fair Work Commission decision of JC v Bechtel Construction (Australia), an employee won reinstatement and back-pay after he was dismissed for out-of-work misconduct when his partner, who was employed by the same company, was only given a workplace warning.

Employment Law – Facts

In essence:

  • Mr C was employed as a rigger by Bechtel Construction Australia on the Wheatstone Liquefied Natural Gas Project in Western Australia
  • in the incident in question, Mr C checked into a hotel in Onslow on a weekend with his partner Mrs H who was also a Bechtel employee
  • they were wearing their Bechtel uniforms when they checked in, however, Mr C had paid for and organised the trip separately of Bechtel
  • Mr C had a 15-30 minute argument with Mrs H in his own hotel room which was loud enough to disturb and alarm other guests
  • the hotel manager was unhappy and contacted Bechtel
  • Bechtel conducted a workplace investigation and dismissed Mr C who then sought a finding of unfair dismissal
  • however, Mrs H was merely given a final written warning because the investigators believed she was the “victim” not the instigator of the incident

Employment Law – Decision

The Fair Work Commission found:

  • Mr C’s dismissal was for a valid reason, but was found to be both harsh and unjust
  • Mr C’s failure to comply with workplace codes and directions can form a valid reason for dismissal
  • Mr C signed an employment contract which expressly required him to comply with, and accept, the company’s workplace policies
  • clauses in the relevant workplace policy stated that particular acts could constitute misconduct or serious misconduct which could jeopardise his employment
  • Mr C should not have been dismissed for a single act of misconduct because his shouting and arguing was merely considered misconduct, not serious misconduct, sighting the company workplace policy that specifically stated that “drunken behaviour in public that causes a disturbance or a nuisance to others” as an example of misconduct
  • Bechtel’s differential treatment of Mr C and Mrs H was harsh because Bechtel’s own workplace policy required them to hold both participants of the offensive behaviour equally accountable
  • both parties were equally responsible for the disturbance as their conduct was properly comparable, consequently equal disciplinary action would have been expected
  • Mr C’s reinstatement was appropriate as the misconduct occurred outside of the workplace and the character of the misconduct didn’t prevent Mr C from carrying out his workplace duties
  • an order for reinstatement to his employment and back pay was made

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • train staff about this Fair Work Commission decision
  • raise any employment law questions with an employment lawyer
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • ensure relevant workplace policies adequately address out-of-hours conduct (as far as legally possible)

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.