Employee Fired for Drunken Harassment in Airport lounge and Onboard flight
One of the challenges employers face is deciding how to handle disciplinary action, including termination, for employee behaviour that occurs “out of hours” or “off-site”, or in situations outside the traditional workplace.
The recent Fair Work Commission (FWC) decision of Evelyn Josey V OS MCAP Pty Ltd [2024] FWC 2731 has considered such issues.
Background
Ms Josey was employed by OS MCAP as a fly-in fly-out (FIFO) technician at the Daunia mining site. She began working for the company on 12 March 2019 and was generally regarded as a dedicated and loyal employee.
She was scheduled to work on 19 July 2023, arriving at Brisbane airport on 18 July to catch a flight to her job site.
When she arrived at the airport Ms Josey was observed to be “extremely intoxicated” and continued drinking in the airport lounge.
She then approached a fellow male colleague, reportedly rubbing her body against him.
Later, during the flight, another male employee reported that Ms Josey placed her head near his lap, grabbed his arm and repeatedly tried to hold his hand.
On 19 July 2023, Ms Josey self-reported that she had been under the influence of alcohol and subsequently took personal leave.
Following multiple complaints about her behaviour on 18 July 2023, the employer stood her down and initiated an investigation.
The investigation confirmed the reported incidents and found that Ms Josey’s behaviour on 18 July 2023 amounted to serious and wilful misconduct, breaching the company’s Code of Conduct. The employer invited her to a show-cause meeting, indicating that her actions constituted grounds for termination.
Ms Josey requested a transfer to a different site, but her employment was terminated instead.
She then filed an application in the Fair Work Commission (FWC), arguing the following:
- Her long-term relationship ended in December 2021, leading to increased alcohol consumption
- She denied the behaviour in the lounge, claiming that even if it occurred, it was out-of-hours conduct in a social setting with a friend; and
- She struggled to recall the events of 18 July 2023.
What did the FWC find?
The FWC determined that the dismissal was fair and supported by reasonable grounds.
Regarding the out-of-hours conduct, the FWC stated:
Even if Ms Josey’s (employee) conduct in the lounge could be considered out of hours, it is well established that out of hours conduct can be a valid reason for dismissal where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee (see Sydney Trains v Andrew Bobrenitsky [2022] FWCFB 32).
The FWC found that Ms Josey’s behaviour in the lounge met these criteria. Moreover, she was at the airport specifically for work-related travel as FIFO work. They further ruled that her actions breached the Code of Conduct and constituted serious and wilful misconduct. As a result, the FWC found that the employer had valid grounds for dismissal.
What to consider
Employers should thoroughly investigate complaints about out-of-hours conduct that may constitute serious and wilful misconduct. Employees must not assume that inappropriate behaviour during work-related events or travel will automatically be considered unrelated to work and therefore not grounds for dismissal.
Employers should also invest in education and training on appropriate workplace behaviour and what constitutes harassment and sexual harassment.
Employers facing similar situations should seek legal advice to ensure they handle disciplinary matters appropriately and in accordance with the law. If you need assistance with workplace misconduct investigations, policy reviews, or training on harassment and sexual harassment, our employment law team is here to help. Contact us today to safeguard your business and ensure compliance with workplace relations.
Disclaimer: The content provided in this publication is intended for general informational purposes only and should not be construed as tailored advice to address specific individual or organisational circumstances. While we strive to offer accurate and up-to-date information, we cannot guarantee its accuracy at the time of receipt or its continued accuracy in the future. Readers are encouraged to seek professional advice or consult relevant authorities regarding their unique situations.
