Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc7150.htm

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Introduction

A fly-in/fly-out female mine worker was validly dismissed according to the Fair Work Commission. However, the fatal flaw was not following the company’s enterprise agreement.

The Commission also helpfully defines the meaning of “sausage fest”.

Background

It would appear that the applicant in this matter was a bit of a practical joker. He also worked for a mining company on a fly-in/fly-out basis.

The mining company was not happy with the applicant’s conduct, including:

  • Placing butter knives and a sex toy in another colleague’s hand luggage which was then flagged with airport security.
  1. Photograph taken at site
  • Posing on-site in a photo with two (2) female colleagues which showed you all opening your [mining company] work-issue shirts exposing your bras.

The hearing

It came to light that the butter knives were in fact taken from the company’s canteen. The Commissioner finding this “…Whilst it is conceded that the knives are likely to be of a nominal amount, it was a deliberate act, and [the applicant] would have known that the knives would, in all likelihood, been confiscated by airport security”.

The findings

  • The applicant was aged 49 at the time of the hearing. She held a well-paying and rewarding job. Given her age, there is no rational explanation for her immaturity relevant to the two incidents.
  • The airport incident is a serious matter. [the applicant] took some time to plan the event. She not only took from [the company] the butter knives without the respondent’s permission, she potentially put [the victim] in breach of Australian aviation and security laws by having the knives go through the security screening without his knowledge. Further, she was trusted with being responsible for the bags of her fellow workers at the airport while they went outside for a cigarette.
  • In cross-examination when it was put to her that a sex toy might be considered by some as an offensive object, [the applicant] declared, “Well, most people have one.”

Relevant to the photograph incident, the Commissioner noted that the applicant posed for a “selfie” with another employee:

  • Stood on a table in the meal room;
  • Unbuttoned her top down to the last two or so buttons; and
  • Provocatively bared the top of her breasts while bending forward.

The applicant was not alone, as she was joined by two other (female) employees who replicated the applicant’s actions.

The Commissioner finding that that a person unfamiliar with the [company] logo would find it difficult to identify it on any of the women’s shirts. However, a person familiar with the [company] logo would…” and then commenting:

“The increased numbers of women in mining is to be applauded, and there is a great deal of work being done by relevant parties to promote this. I accept that being able to identify women who work in mining who, while at their workplace, unbuttoned their shirts, provocatively exposing their breasts (within their bra) can cause damage to the reputation of the respondent”.

Noting that [the company] did not hold any concern that the applicant was accompanied by two other female employees in a similar pose, the applicant’s conduct was no more serious than the other two employees. Whilst the other employees were sanctioned (one nearly losing her job), none lost their job. The Commissioner finding:

“Noting that the women did keep their bras on while posing for the photo, I accept that the appropriate disciplinary action for each of [the other employees] was a first and final written warning”.

The applicant’s assertion that one of the other employees had a previous warning for inappropriate comments on social media comments that the mine is a “sausage fest’”; the commissioner noted that:

“While the media article was not authorised, [the other employee] largely promoted women in mining, but then referred to it being a ‘sausage fest’. [The applicant’s] characterisation of that term meaning that men are largely promiscuous on-site is far off track. A ‘sausage fest’ means that there is a preponderance of men compared to women. The reference to ‘sausage’ is a colloquialism because men have a penis and hence the correlation to a sausage”.

[Ed: Thanks for clearing that one up].

Further, the Commissioner found that there was a valid reason for the dismissal having considered the company’s Charter Values and the Code of Conduct to be reasonable workplace standards which were breached by the applicant, having received refresher training only months earlier.

But the process?

The applicant was covered by an enterprise agreement. The enterprise agreement contained a disciplinary clause. This was not followed to the letter, with company’s representative stating that they were treated as guidelines only [Ed: EBA’s are legal documents – not guidelines], with the Commissioner finding:

“Whilst [company’s representative] did, in the show-cause letter cite that he considered her conduct to be intentional, he didn’t explain the context of such finding”.

“Given that Mr Brown was of the view that the airport incident did not warrant dismissal with the information that he had before him at the time, it was appropriate in all of the circumstances for Mr Brown to discuss with Ms Odgers following the investigation, (by telephone, if necessary), and determine which step within the Guidelines he would determine was the appropriate step. He did not assert that pursuant to clause 5 of the Fair Play Guidelines that it was “serious misconduct”, even if it was later asserted that it could amount to serious misconduct. It was certainly misconduct, but [it was] never determined that it was serious misconduct to warrant an excuse not to follow the disciplinary procedure within the Fair Play Guidelines. He just did not do it”.

“Where it was submitted that the photo incident could amount to serious misconduct, the Fair Play Guidelines were not carried out for any of the employees involved. [The company] never asserted that the reason why he didn’t complete the Fair Play Guidelines for all five employees was because he considered for each of them the misconduct amounted to serious misconduct. He just did not do it”.

No opportunity to influence the outcome

The Commissioner found that the applicant was not provided procedural fairness, and this was a major flaw in the company’s decision to dismiss the applicant. This resulted in the absence of the legal requirement of a “fair go all round”.

Reinstatement?

Whilst considered by the Commissioner, it was found that the applicant had secured employment with another contractor on the same mining site, but with lesser pay and conditions.

Age a factor?

The Commissioner referenced Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd:

“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”

According to the Commissioner:

“Ms Odgers was employed for a period of approximately five years. This is not a long period of time, nor is it an insignificant period of time. As stated above, Ms Odgers was aged 49 at the time of the dismissal”.

Not advancing the cause of women in mining

“[The applicant] had received an invitation to be part of the women in mining trajectory as part of her achievements and tenure in the mining industry. Yet no evidence was led in relation to this. I do not consider it appropriate to take into consideration this submission, given that I do not think anybody would find it appropriate for a candidate promoting women in mining to be involved in the unsavoury incidents [the applicant] was involved in, and for which I have determined there was a valid reason for the dismissal”.

The outcome of the application

“In no uncertain terms, [the applicant’s] misconduct was unacceptable. On being alerted that [the company] was investigating her and the investigation was still on foot, [the applicant] decided to partly undress in the workplace just two days later and allow a photograph to be taken of her and others”.

Remedy

The Commissioner determined that the respondent pay the applicant, the following compensation (less tax, plus superannuation):

10 weeks’ compensation: $26,200.19
Less five weeks in lieu of notice: $13,100.10
Amount: $13,100.19
Deduction of 50% for misconduct: -$6,550.09
Total amount: $6,550.10

Commentary

If you employ people, the chances are that they are covered by a modern award, or in some cases you may have entered into an enterprise agreement. Or you may have a disciplinary policy and procedure. Or all of them. Check these documents and follow their requirements to the letter.