FWC rules that out-of-hours conduct can be 'valid reason for dismissal'
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, according to reports.
Evelyn Josey, who worked as a production technician for OS MCAP, a labour hire provider for mining giant BHP, was dismissed in December 2023 following an investigation into incidents that occurred in July of the same year.
The FWC's ruling, issued by Commissioner Sharon Durham, found that Josey'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.
"It is well established that out of hours conduct can be a valid reason for dismissal," Durham said in the decision quoted by news.com.au.
"It is not uncontroversial that sexual harassment in connection with employment is a valid reason for dismissal. Having considered all of the relevant evidence and submissions, I find there was a valid reason for Ms Josey's dismissal."
Harassment incidents while intoxicated
The incidents in question took place at Brisbane Airport and on a flight to Moranbah on July 18, 2023, when Josey, described as "extremely intoxicated," harassed two colleagues, prompting formal complaints from both men, news.com.au reported.
The commission found that Josey, who was earning an annual salary of $130,192, 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, Josey continued her inappropriate behaviour, this time targeting another colleague. The employee later lodged a formal complaint about the incident, citing concerns over the workplace environment and his discomfort with future interactions with Josey.
The FWC acknowledged the personal difficulties Josey 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. She told the commission that her intoxicated state on July 18 was a result of these ongoing struggles.
"I was just having a little bit of a harder time on that particular day, and I didn't particularly want to go to work, and I started drinking really early," Josey said as quoted by news.com.au.
Josey, who had been employed by OS MCAP 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 her efforts to apologise for her behaviour, the formal complaints led to the investigation that ultimately ended her employment.
