A FIFO worker who was terminated for her intoxicated and inappropriate conduct at an airport lounge, including rubbing herself on a coworker, has had her unfair dismissal claim rejected despite the conduct occurring outside of the workplace. This recent case has key learnings for all businesses.
Case Review
In this case a Fly In Fly Out (FIFO) worker was terminated for breaching business policy after two co-workers lodged complaints that the worker harassed them when she was “heavily intoxicated” at the Brisbane Airport Lounge and on the plane.
In the first incident, at the airport lounge, the worker “approached another [business] employee, being [the co-worker], turned her back to him and rubbed her body up against his”.
In the second incident, on the plane, the worker “during the flight from Brisbane to Moranbah, [the worker] lent on another [business] employee, being [the second co-worker], who was seated next to her, placed her head near his lap, grabbed his arm and tried to hold hands with him multiple times”.
The business investigated these claims, found them to be substantiated and found that they amounted to harassment and sexual harassment, as well as breaches to the business Code of Conduct and Values. As a result the worker was terminated.
The worker lodged an unfair dismissal claim.
As part of her unfair dismissal claim the worker, acknowledged that she had, at the time, a drinking problem and she conceded that she was indeed intoxicated when she arrived at the lounge, and that she continued to consume alcohol while waiting in the lounge. She also conceded that she met up with and engaged in ‘discussion’ and ‘banter’ with co-workers.
The worker argued however, that the lounge was not her workplace and therefore the business policies did not apply at the time, so she asserted that the dismissal was unfair.
The business argued that the reason the worker was in the airport lounge was to transit to work, and that access to the lounge was connected to her work-provided flight, so the expectations around conduct, and business policies applied to conduct while in the lounge.
The Commission agreed with the business “This was not a case of strangers interacting on public transportation. This was two co-workers undertaking work-related travel”.
“[the worker’s] level of intoxication may well have hindered her capacity to assess the impact that her conduct may have had on [the co-workers], however it does not and cannot excuse it”.
“Having considered all of the relevant evidence and submissions, I find that [the worker’s] actions were a serious breach of [the businesses] Code of Conduct and Charter of Values and were a valid reason for dismissal”.
Learnings for all businesses
The lines between in work and out of work conduct are often blurred, but there are situations where the business should be clear about conduct expectations and responding to conduct concerns.
There is a list of situations where the event/location is likely to be found to be significantly enough tied to work to be considered an extension of the workplace for the purposes of misconduct processes;
- Travel to and from work
- Training
- Conferences
- Travel to and from work events
- Recognition Nights
- Christmas Parties
- Social Days organised by or at the workplace (like Melbourne Cup or Fun Runs)
It is important that the business clearly communicate the expectations for conduct in these situations, and then respond to any concerns raised. Clear expectations, clear policies and clear codes of conduct all arm management with the tools they need, alongside appropriate performance management processes, to respond to misconduct.
This case is a reminder that businesses are still responsible for the conduct of their workers when they are at a work-connected location, and that it needs to consider and communicate expectations around conduct in these locations clearly.
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
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