The Fair Work Commission (FWC) recently dealt with a case where an employee was found to have been unfairly dismissed from a resources and energy business after 20 years of employment due to misconduct. The ruling serves as an important reminder for employers to ensure that policies are clearly communicated, understood, and properly enforced, especially in remote or culturally diverse workplaces.
Background and allegations
Employed by a resources and energy organisation since 2004 and, at the time of his dismissal the employee was working as a truck driver. The events leading to his termination began in April 2024, when the employee allegedly behaved inappropriately towards a colleague.
The employee repeatedly made derogatory comments, implying that his colleague “knew how to suck the boss,” while imitating a person performing fellatio. The colleague initially did not respond, though he later testified that this behaviour occurred multiple times.
In May 2024, the employee made a similar comment, which led his colleague to ask him to stop, warning that he would file a harassment complaint if the behaviour continued. Despite this, the employee persisted, making repeated comments to other employees, implying that they should avoid joking with the employee as he would report it to management.
These actions culminated in an altercation in June 2024 where the employee confronted his colleague displaying aggression. Subsequently, the colleague reported the behaviour to management, triggering an internal investigation.
The outcome of the investigation was a determination that the employee had breached several workplace policies, including the business’s Code of Conduct, leading to his dismissal in June 2024.
The findings
The focus of the FWC’s ruling was the procedural handling of the dismissal. While the employee admitted to making some of the inappropriate comments, he claimed not to have been aware of the specific policies he was alleged to have breached. This lack of awareness became a pivotal issue in the decision.
During the hearing, the employee stated, “I don’t know anything about the new policies the employer say I breached. Then they sacked me. I don’t know why I should be dismissed.” His submission suggested that employees should be made aware of policies if the employer intends to hold them to the standards set by those policies.
The employee further argued that the policies had not been introduced to the workforce effectively, as they had not been raised in the workplace Joint Consultative Committee, which could have been an appropriate forum for such discussions.
Although the employer had delivered training on the Code of Conduct, the FWC noted that the toolbox talk during which the policies were discussed appeared to be a “tick and flick” exercise, failing to effectively communicate key behavioural expectations. The employer’s failure to sufficiently introduce and reinforce its other workplace policies – particularly the newer Psychosocial Safety Policy – was deemed inadequate.
The decision underscores the importance of employers not only having clear policies but also ensuring that they are communicated effectively, especially in remote or linguistically diverse workplaces.
Was it serious misconduct?
The FWC made it clear that while Samad’s behaviour was inappropriate and, in some instances, aggressive, it fell short of meeting the threshold for serious misconduct. Specifically, while harassment was alleged, the FWC found that the conduct, though offensive, did not constitute sexual harassment and instead characterised it as bullying, which – although serious – did not create an imminent risk to health and safety.
Harsh and unjust dismissal
Despite the valid reasons for termination, the FWC determined that the dismissal was harsh due to the employee’s 20-year tenure, his age (62), and the limited employment opportunities in the remote location where the business operates. Additionally, the Commission gave weight to the inadequate roll-out of key workplace policies, noting that proper and culturally appropriate training might have mitigated the applicant’s behaviour.
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