FWC considers worker's 'lack of exposure to and understanding of' relevant policies
The Fair Work Commission (FWC) recently dealt with a case involving allegations of workplace bullying and harassment. The dispute centred around a worker's dismissal after making inappropriate comments to a coworker.
The worker argued that he was unaware of the company policies he allegedly breached and that his comments were meant as jokes.
He also pointed to his long service record and the limited job prospects in the remote location as factors that should be considered.
The case involved a 62-year-old truck driver who had worked for a phosphate mining company on Christmas Island for about 20 years. The worker was dismissed after allegedly making repeated inappropriate comments to a coworker, including accusations of "sucking up to the boss" accompanied by offensive hand gestures.
The incident began in April 2024 when the worker started making comments to his coworker about "sucking the boss's dick" while imitating a person performing fellatio.
This behaviour reportedly continued daily until May 24, 2024, when the coworker asked the worker to stop or he would file a harassment complaint.
Following this, the worker allegedly began telling other employees within earshot of the coworker that they shouldn't joke around him because he would report it to management.
The situation escalated on June 1, 2024, leading to an altercation where the worker displayed aggression towards the coworker.
The employer said that the worker's actions violated several company policies and created a hostile work environment. They argued the behaviour constituted harassment and warranted immediate dismissal.
The worker, represented by his union, said he was unaware of the policies he allegedly breached.
He also argued that his long service record and the limited job prospects on Christmas Island should be considered.
During the hearing, the worker admitted to making some of the comments but denied they occurred as frequently as alleged.
He claimed such banter was common in the workplace and that he was surprised by his coworker's reaction.
The employer's witnesses, including the coworker and management staff, provided evidence about the frequency and nature of the worker's comments, as well as his response when asked to stop.
A key aspect of the case was the implementation and communication of company policies. The FWC found that the employer's approach to policy rollout and training was inadequate, particularly for remote workers.
The Commissioner noted:
"[The employer] was restricted to essentially saying that the policies had been around for a while so they assumed that they had been rolled out. In the absence of some records or other indication I am not satisfied that this is the case."
The FWC emphasised the importance of ensuring all employees, especially those in remote locations, receive proper training on workplace behaviour standards and company policies.
The FWC also gave weight to the worker's long service record and the unique employment situation on Christmas Island. The Commissioner observed:
"Given this, [the worker's] employment prospects may well be limited to blue-collar jobs and it is likely that [the worker's] age may play a factor in [the worker's] attempts to find work, albeit that this factor may not be overtly acknowledged."
The FWC considered the limited job market on Christmas Island, noting that a search of job vacancies revealed only five positions, most requiring skills beyond the worker's experience.
The FWC found that despite there being a valid reason for termination, the dismissal was harsh and unjust when considering all factors. The Commissioner explained:
"I have concluded that despite the valid reason for termination, the dismissal of [the worker] was nevertheless harsh and unjust."
"I believe that I must give some weight to my finding that [the worker's] lack of exposure to and understanding of the relevant policies may have been a contributory factor in [the worker's] behaviour," the FWC added.
Finally, the FWC stressed the need for proper policy implementation and training:
"I am satisfied that this may have changed [the worker's] behaviour. It may not have changed [the worker's] underlying personal views but if [the worker] was working in an environment where everyone clearly knew the standards that were expected, why they were expected and the consequences for breach, I think the likelihood of [the worker] engaging in the behaviours that [the worker] did would have been reduced."
The case serves as a reminder for employers to ensure comprehensive policy implementation and training, particularly in remote or culturally diverse workplaces. It also highlights the need to consider an employee's entire work history and personal circumstances when making dismissal decisions.
