FWA orders compensation for employee sacked for head-butting a co-worker

Fair Work Australia has ordered compensation to be paid to an employee who was sacked after bullying accusations and head-butting a co-worker at a Christmas party, describing the procedure of his dismissal as “inept”.

Complaints were made at construction company Boom Logistics of workplace harassment including destruction of personal property such as motor vehicle tyres being slashed, employees urinating in another employee’s boots, widespread drug use, concealment of serious workplace health and safety incidents and nepotism.

After an investigation by Boom Logistics, the ASX-listed company dismissed Zeb Dewson in May 2012 in relation to a bullying accusation against him by another staff member, which included claims of two assaults the previous month.

After an interview, Dewson was dismissed and was advised that the two incidents, which included a claim Dewson had deliberately farted in someone’s face, along with a head-butting incident at a Christmas party in 2010, had established a pattern of “unacceptable misconduct”.

However, Fair Work Australia Commissioner Ian Cambridge found Dewson’s dismissal was unfair due to procedural deficiencies, including the failure to interview anyone else regarding the alleged assaults, which “represented something of a case study in how not to conduct an investigation”.

The role of the Christmas party incident in the dismissal was also addressed by the FWA.

“In my view this is an indefensible act. However, the employer had provided the alcohol which contributed to the incident and, more importantly, it took no disciplinary action against the (employee) at the time of the discovery of the misconduct,” Cambridge said.

He noted the head-butting was not of itself considered by Boom Logistics to represent misconduct that justified dismissal.

“If the matter had been properly considered and dealt with by the employer at the time it may have provided sound basis for dismissal,” he said.

“Ultimately, and largely because of the failure of the employer to deal with the matter at the time, the head-butting incident cannot now become a justification for the (employee’s) dismissal.”

FWA ordered compensation be paid to Dewson but he was not successful in his claim for reinstatement.

Richard Clancy, executive director at the Victorian Employers Chamber of Commerce and Industry, told SmartCompany that employers do have the power to take action on out-of-work events like the Christmas party incident, but they must address the matter immediately and properly investigate the circumstances of the incident.

He says Boom Logistics was relying on an incident in 2010 as forming part of a pattern of conduct, but FWA said it should have dealt with the head-butting incident in a timelier manner.

“If you regard something as serious you have to treat it as serious at the time, not some time down the track,” Clancy says.

“If there is an incident you consider to be unsavoury or serious, your ability to use it as grounds for termination will be compromised the longer you leave responding to it.”

Clancy says Boom Logistics could have better investigated the incident in terms of who was interviewed and how material was presented to the employee and whether or not the investigation came up to a required standard.

“It goes back to the usual principles of conducting good investigations, which is to put all your allegations to the employee concerned and ensure anyone who was involved in the incident is also interviewed and, fundamentally, don’t go into an investigation process with a pre-determined outcome,” he says.

Clancy says in Christmas party season there are practical steps that employers can take as hosts of a function which includes having a clearly delineated starting and finishing times for a function, making sure alcohol is responsibly served, ensuring the venue is appropriate and that staff know the standards of behaviour expected.

“The advice we give is to keep your behaviour G-rated, just because you think a joke is funny it does not mean that the person hearing the joke thinks it is funny, and respect your colleagues in terms of physical contact and space and topics of conversation,” he says.

“Just because it is a Christmas party does not mean it is a free for all.”

SmartCompany contacted Boom Logistics for comment but no response was available prior to publication.

This story first appeared on SmartCompany.