Commission affirms that conduct outside the workplace has sufficient connection to employment

The Fair Work Commission (Commission) recently ruled in favour of an employer who dismissed a highly intoxicated worker for harassment and sexual harassment at an offsite location, in a decision that reinforces that conduct outside of the workplace may still have a sufficient connection to employment, and therefore be subject to disciplinary action.

Case Overview

In this case, a female FIFO technician arrived at Brisbane airport to fly to her scheduled shift at a central Queensland mine site and was reportedly “extremely intoxicated.” While waiting for her flight the technician went to the airport lounge and ordered two more alcoholic drinks. She then proceeded to engage in inappropriate and unwelcome physical contact with two male colleagues. An internal investigation conducted by her employer found that her behaviour constituted harassment and sexual harassment, leading to her dismissal.

The Commission found that the technician was in clear violation of harassment policies and that her actions, including rubbing her back against a male employee and laying on the crotch of, and attempting to hold hands with, another male employee, were sufficiently connected to the workplace.

Arguing the actions took place in a “social setting and [were] an interaction with a friend” the technician stated that the events were therefore outside of the scope of work-related conduct. The technician further submitted that there was insufficient connection to her employment because:

• her employer did not require her to attend the Lounge;
• her employer did not require any other employee to attend the Lounge;
• her employer did not pay the employee for her time in making her way to the airport or while she was in the airport;
• the employee was not working and the Lounge was not a work site of the employer;
• the employee rarely entered the Lounge and made a split-second decision on the day to do so;
• the employee was not dressed in work uniform and was indistinguishable from the general public in the Lounge;
• the employee had not made any prior plans to meet any other employees in the Lounge; and
• by happenstance the employee saw a colleague in the Lounge and went to sit with him.

The Commissioner rejected these assertions and found that the technician “would not have been at the airport in the first place if she was not required to attend in order to board a flight to commence her rostered shifts”. The Commissioner further highlighted that even when occurring offsite, an employee’s behaviour that is detrimental to the employment relationship, is incompatible with the employee’s duties, or damages the interests of the employer, can lead to valid grounds for dismissal.

Implications for Employers

The Commission in this case was satisfied that the technician’s engaged in misconduct in the airport lounge and that there was a valid reason for the technician’s dismissal. However, this ruling emphasises the legal obligation for employers to ensure a safe working environment. The Commission noted that the employer had a responsibility to eliminate sexual harassment and protect the health and safety of its employees. This commitment is vital to remember at this time of year, where employee interactions often can extend beyond formal work settings.

The technician said that she had developed an alcohol problem to cope with the stress of a relationship breakdown and claimed that her intoxication inhibited her ability to understand the impacts of her actions. However, the Commission found that this did not excuse her behaviour. Employers should note the importance of maintaining clear standards of conduct, including appropriate drug and alcohol policies and procedures which contemplate scenarios such as work-related travel. .

Lastly, the Commission noted that the employer’s investigation process into the events was thorough and fair. The technician was given an opportunity to respond before her dismissal, aligning with the best practice in handling misconduct allegations.

Conclusion

The Commission’s ruling in this case re-affirms that employers have the ability to take disciplinary action in respect of certain conduct that occurs outside of the workplace. The decision serves as a timely reminder for employers of the importance of maintaining a safe and respectful workplace, including to appropriately respond to conduct that doesn’t align with established conventions, internal policies or procedures.

Evelyn Josey v OS MCAP Pty Ltd [2024] FWC 2731 (2 October 2024)