Misconduct at a work-related social event is a valid reason for dismissal

A senior manager was first employed by a bank as a Customer Service Officer. Through 35 years of employment, he had reached the position of Senior Relationship Manager in a branch. He had been provided training on the bank’s policies regulating employee conduct. His most recent training focused on victimisation, discrimination, and sexual harassment. The senior manager had an unblemished employment record and had received rewards for his work performance.

Off-hours and off-site workshop and social event on 10 March 2021

Along with 160 bank employees in the state, he attended a compulsory workshop sponsored by the bank. The bank also organised a social event called the “Sundowner” at a bar, but attendance was not compulsory. The employees did not wear uniforms and there was no signage of the bank at the social event, but the employees were provided with a wristband that identified them and allowed them unlimited drinks at the bar. The sundowner closed at 7pm.

Drinking after the sundowner

Nine employees, including the senior manager, remained after the sundowner closed. The senior manager purchased drinks on his personal credit card until 9:26pm. He’d had 6 full-strength pints and 4-5 whiskeys in five hours and appeared intoxicated. Another bank employee from another branch in the region, who had just returned from maternity and parental leave, appeared tipsy.

Drunken behaviour at the bar

CCTV footage at the bar showed that the senior manager was speaking to three other male employees when the female employee inserted herself between the men that the senior manager was speaking to. She moved them out of the way and spoke to the senior manager.

The senior manager turned away, but the female employee patted him on his back. The senior manager walked away and talked to another male colleague. The tipsy colleague followed the senior manager, touched him again, talked to him, and put her arms on the second man’s shoulders before she wandered away.

Groped colleague’s buttocks

The tipsy colleague stood up and waved her hands in the air to get the group’s attention. The senior manager who was standing next to her touched the lower part of her buttocks and slid his hand up her waist. When the female employee turned toward the senior manager, the senior manager sidestepped but the female employee leaned on him. They talked and separated to talk with others. The female employee exits the bar, followed by others, and the senior manager was the third last to leave.

Another CCTV camera footage showed the tipsy colleague speaking with another female colleague and re-enacted how the senior manager grabbed and squeezed her buttocks. The senior manager stumbled out of the bar with the group.

Walked to the casino, denied entry

The group walked to the nearby casino and some members of the group went to one or two bars at the casino. The senior manager said he called an Uber but his app was not working. He went to eat a burger and walked to the casino to find a taxi but he saw one of the members of the group about to enter the casino. They stood in line showing identification to be allowed into the casino. The female colleague of the tipsy employee passed the security check on her way to the taxi rank and told the guard not to let the two men in as they were drunk.

Offensive interaction

The senior manager shouted after the female colleague, using abusive language. The male colleague of the senior manager approached the female colleague and kept repeating to her, “Why did you do that?”

The female colleague walked off. The senior manager walked toward the taxi stand as well and when he passed the female colleague, he said some swear words to her and expressed his disappointment that her comments caused them to be refused entry into the casino.

The senior manager claimed that he did not even recognise the female colleague as one of the persons in the bar with them or that she was a work colleague when he swore at her. The female colleague replied, “You senior managers think you can get away with anything.”

The senior manager rode a cab home. While in another cab, the female colleague emailed another female colleague who had been in their group whilst at the bar and reported the interaction between her, the senior manager, and the other male colleague.

Investigation on 11 March 2021

The tipsy colleague spoke with her line manager and reported her buttocks being touched and squeezed by the senior manager with his fingers near her genital area. She took leave the following day and reported the groping incident to the police.

The bank’s case manager interviewed the members of the group and none of them saw the incident. They all said that whilst they were eating noodles at the noodle bar inside the casino, the tipsy female colleague told them the senior manager “grabbed her arse.”

Allegations letter 23 March 2021

The bank alleged that the senior manager inappropriately cupped the buttocks of the tipsy female colleague and moved his hand towards her private area. He also called another female witness a expletive names.

He was informed that if he wanted to, he could submit a response. If he did not respond, the bank will decide on a disciplinary action based on the available information. The senior manager submitted a formal written response via email on 25 March 2021. In his response, he denied any intentional physical contact with the tipsy female colleague, but he did recall that he had shouted “You f-cking idiot, why did you do that?” but he denied using other words.

Senior manager informed of the CCTV footage

The case manager informed the senior manager that CCTV footage existed. The case manager did not review the CCTV footage of the alleged groping incident or of the conversation between the tipsy female employee and the female colleague and proceeded to write his report and recommended that a show-cause letter be issued to the senior manager. The case manager’s superiors decided to terminate the senior manager even without a show-cause process and directed him to prepare a termination letter.

Arrested for indecent assault

The senior manager was arrested and charged for unlawful and indecent assault and then later released on bail. As soon as he was released, he informed the bank, who then told him to return to work the next business day. Later, that directive was revoked, and the senior manager was placed on special paid leave for 2 weeks pending the criminal court hearing on 19 April 2021.

Dismissed on 13 April 2021

At a meeting at the state headquarters of the bank, the senior manager was handed a copy of the CCTV footage and a termination letter. The allegations of sexual harassment and violation of the code of conduct were found to have been substantiated and he was terminated for serious misconduct. He was paid 5 weeks’ salary in lieu of notice despite the dismissal being summary. He was terminated without being provided the opportunity to respond to the findings of the investigation or the decision to terminate his employment.

Unfit for work

The senior manager had been seeing a psychologist due to his summary dismissal and the stress related to it. The pending criminal case against him had caused his mental health and wellbeing to deteriorate. He had been certified unfit for work since he was dismissed and had not held any paid employment since.

Employer’s duty to establish a valid reason for the dismissal

The Fair Work Commission found that the employer had the obligation to establish that a valid reason existed for the dismissal, and that the reason must not be capricious, fanciful, spiteful, or prejudiced.

The CCTV footage relied upon by the bank in supporting the termination was grainy and at a distance. It showed that the senior manager’s hand was at the centre of the tipsy colleague’s lower buttocks and moved upwards towards her waist.

Conduct must be shown to be unreasonable, uninvited, and unwelcome

To be considered a breach of the harassment and bullying policy, the behaviour must be shown to be unreasonable, uninvited and unwelcome. It certainly appeared that the tipsy colleague initiated physical contact and attempted to get the senior manager’s attention. She also did not leave the bar but went to the casino and stayed to share a meal with her colleagues, and this belied any assertion of deep distress she might have experienced.

However, the tipsy colleague was a married mother and was a junior colleague and the senior manager should have exercised extreme caution. And the fact that the tipsy colleague initiated physical contact by patting the senior colleague on the shoulder and back did not constitute an invitation for him to touch her in an intimate location or in a sexualised manner.

Yelling out profanities at another co-worker in a public venue such as a casino would be considered by any reasonable person to be offensive, humiliating, and threatening. Even if the senior manager considered the co-worker as annoying, this did not invite the response of the senior manager.

Out-of-hours and off the worksite but still work-related

Whilst it was true that the incidents occurred out-of-hours and off the worksite and among employees of the bank from different branches, it remains that the bank’s anti-harassment and anti-bullying policy expected them to behave in accordance with the code of conduct as they are representing the bank especially when they were at work-related functions such as seminars, conferences, and social events.

Behaviour risked damage to the employer’s interests and reputation

The senior manager’s conduct gave rise to a material risk of damage to the bank’s interest even when no actual damage was sustained. Because the incident had been well-publicized and had been made known to the bank’s employees, the incident impacted the morale of the employees.

Factual context of the conduct

The bank chose to provide free and unlimited access to alcohol for their employees. The senior leadership did to stay to ensure that all the employees were safe after the social event ended. The senior manager’s judgment might have been impaired by his consumption of alcohol provided by his employer.

Personal circumstances of the senior manager

The senior manager had served faithfully without any record of similar conduct for the 35 years of employment with the bank. He had no formal qualifications, and he was 53 years old with no other work experience who now suffered from depression. His dismissal was catastrophic.

Tipsy colleague might have also breached the bank’s code of conduct

The tipsy colleague appeared to have tried several times to get the senior manager’s attention and may well have constituted a breach of the bank’s policies. The sexualisation of the contact increased each time the incident played out. The summary of facts in the termination letter did not accurately reflect the descriptions of the events as narrated by the tipsy colleague. The termination letter described an event of greater intimacy and duration than what was in the CCTV footage.

Dismissal not unreasonable, unfair, or harsh

The bar as to what constitutes consent for physical and sexual interactions has been raised higher. Being intoxicated is no longer an excuse for one employee to touch another employee intimately; and attendance or participation in a work-related social activity was not an invitation to be touched inappropriately. The application was dismissed.

Source:

John Keron v Westpac Banking Corporation [2022] FWC 221 94 February 2022)

https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc221.htm

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