Unfair dismissal update – poor process to termination will let you down

02 April 2020

A recent finding of the Fair Work Commission highlights the importance of an employer complying with its own disciplinary policies even in the face of inappropriate behaviour, which breaches policy.

This case also shows that the Fair Work Commission is willing to take into account an employee’s post-employment conduct in its determination. However, this factor does not go towards the Commission’s consideration of s 387 of the Fair Work Act 2009 (Cth).

The background

On 4 March 2020, Fair Work Commissioner Hunt handed down a finding in Kevin Boyle v BHP Coal Pty Ltd (U2019/2902). Mr Boyle, an employee of BHP, had brought an unfair dismissal claim following BHP’s decision to fire him over a crude joke.

Mr Boyle made the joke in the company of three other employees, including two females. The joke was sexual in nature, saying words to the effect of, 'if my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally'.

After BHP’s investigation, including a meeting with management to discuss the allegations, BHP decided to terminate his employment for 'unacceptable conduct' in breach of BHP’s policies in place to regulate employee conduct.

Mr Boyle filed an action in the Fair Work Commission, claiming that his dismissal from his employment with BHP was unfair as it was harsh, unjust and unreasonable.

The hearing

The Applicant accepted that his joke was inappropriate but submitted that his dismissal was in breach of BHP’s ‘Guideline to Fair Play Policy’ (the Fair Play Guide) because:

  • BHP failed to inform him of all the reasons for his dismissal
  • that he should have been given an opportunity to respond to all of the BHP’s concerns
  • there was no unreasonable refusal to allow him to have a support person at any of the meetings relating to his dismissal
  • that BHP failed to consider alternative disciplinary outcomes to dismissal and failed to consider his positive employment record
  • that he expressed remorse for his conduct
  • he seeks to be reinstated to his role.

BHP argued that there was valid reason for dismissal, particularly because:

  • Boyle caused offence to the two female employees
  • Boyle’s conduct amounted to 'unlawful sexual harassment'
  • Boyle contravened the BHP’s well-established policies and procedures.

The Commissioner’s findings

Commissioner Hunt found that

'[BHP] expects its employees to abide by [its] numerous policies, but its own senior management have a complete lack of knowledge as to the application of the Fair Play Guidelines, policy of [its own] creation'.

BHP was also found to be applying the Fair Play Guidelines in a 'flawed and prejudicial' manner and did not make a 'holistic evaluation' of Boyle’s conduct and subsequent remorse.

The Commissioner found that BHP dismissal of Boyle for a one-off joke was unjustified even though the conduct was in breach of BHP’s workplace policies, Business Code of Conduct or Charter Values.

Controversially, the Commissioner further found that while there are steps taken to reduce the risk of sexual harassment in the modern workplace, the Australian values of larrikinism and a sense of humour should still be valued qualities so long as it does not seriously adversely affect others.

Nevertheless, the Commissioner ultimately found that Boyle should not be reinstated to his former role because of his 'repetitious slur' against the two female employees and his attempts to 'downplay his misconduct' by making unsubstantiated allegations against the two female employees that they were engaging in sexualised talk, which led to him to making the joke.

The Commissioner found that the falsified allegations were sufficient to warrant a dismissal. As a result, Mr Boyle’s Application was dismissed, notwithstanding with procedurally deficiencies.

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