The Fair Work Commission (FWC) has rejected an unfair dismissal claim filed by a female fly-in fly-out (FIFO) worker who was fired for sexually harassing two male colleagues. The technician worked as a production technician for a labour hire provider for mining company BHP, was dismissed in December 2023 following an investigation into incidents that occurred in July that year.

The FWC found that the technician’s dismissal was justified due to “serious misconduct” that violated company policies, despite the FIFO worker’s argument that her behaviour had been unfairly characterised and had occurred outside of work hours. Having considered all the relevant evidence, the FWC determined that out of hours conduct can be a valid reason for dismissal, and that sexual harassment in connection with employment is a valid reason for dismissal.

Harassment incidents while intoxicated

The incident took place in July 2023 at Brisbane Airport and on a flight to Moranbah where the technician, described as “extremely intoxicated,” harassed two colleagues, prompting formal complaints from both men.

The commission found that the technician had approached one of her colleagues in the Qantas lounge, where she allegedly rubbed her body against him while under the influence of alcohol. This interaction became the basis of a formal harassment complaint.

Upon boarding her flight, the technician continued to behave inappropriately, this time targeting another colleague. The colleague later lodged a formal complaint about the incident, citing concerns over the workplace environment and his discomfort with future interactions with the technician.

The FWC acknowledged the personal difficulties the technician had been experiencing at the time of the incidents. According to the ruling, she had developed an alcohol problem following the breakdown of a 26-year-long relationship in December 2021. The technician told the commission that her intoxicated state on July 18 was a result of these ongoing struggles.

The technician, who had been with the labour hire provider since 2019, returned to work after a five-week period of leave following the incidents but was subjected to rumours and gossip, which she said caused her to feel ostracised. Despite the technician’s efforts to apologise for her behaviour, the formal complaints led to the investigation that ultimately ended her employment.

Is it out of hours conduct?

The technician claimed the incident took place ‘out of hours in a social setting with a friend’ with ‘insufficient connection to employment’ because the labour hire provider did not require her colleague to attend the Qantas lounge.

The FWC refuted this claim, stating that the technician would not have been at the airport if she was not required to attend to board a flight to commence her rostered shift. Furthermore, the commission found that it was inconsequential that the technician entered the Qantas lounge as it is not considered separate to the airport.

The FWC stated that even if the technician’s conduct could be considered ‘out of hours’, it is well established that out of hours conduct can be a valid reason for dismissal where it is likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interest, and is incompatible with the employee’s duties as an employee; which the commission found the technician’s conduct was likely to do.

Findings

The commission ruled that the first incident amounted to harassment and the second constituted sexual harassment, both of which breached the employer’s code of conduct, employee handbook, and charter of value and respect. The FWC also stated that although the technician’s level of intoxication may have hindered her capacity to assess the impact that her conduct may have had on her colleague, it did not excuse it.

The dismissal was upheld, with the commission highlighting the employer’s obligations to protect the health and safety of its workforce and their legislated positive duty to eliminate sexual harassment in the workplace.

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