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Employee tells manager to "f*ck off", kisses a co-worker... and wins his unfair dismissal claim

Posted on July 17, 2015

The decision in Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 serves as yet another reminder to employers to ensure that procedural fairness is adopted when dismissing an employee – even where there is a (very) valid reason for termination.

Mr Keenan was employed by Leighton Boral Amey Joint Venture (LBAJV) as a permanent Team Leader. On 12 December 2014, LBAJV's Christmas party was held at a hotel with an open bar. Mr Keenan consumed a large amount of alcohol at the party and was involved in a number of incidents where he:

  • Told a manager of LBAJV to “F*ck off” (not knowing who he was);
  • Sexually harassed a colleague by making unwelcomed propositions towards her;
  • Bullied another colleague on two occasions during the night, including an incident when he told her: “I thought you were a little b*tch but you know you’re okay and I like you”;
  • Harassed another colleague on two occasions during the night, including an incident when he asked her: “What do you even do? No seriously. Who the f*ck are you? What do you even do here?”;
  • Sexually harassed another colleague by unexpectedly kissing her;
  • Sexually harassed another colleague when he told her: “My mission tonight is to find out what colour knickers you have on”.

Management of LBAJV was made aware of these incidents on 15-16 December 2014 and Mr Keenan was called into a meeting on 16 December 2014 for the purpose of notifying him of the allegations against him. On 17 December 2014, Mr Keenan was provided with a report listing the allegations and a second meeting was held on 18 December 2014 for him to respond to each one.

Upon returning to work on 20 January 2015 (following Christmas break), Mr Keenan was informed that his employment was terminated effective immediately.

The Fair Work Commission (FWC) considered the evidence of Mr Keenan and his colleagues involved in each of the incidents. The FWC found that LBAJV had valid reason for dismissing Mr Keenan, and placed particular weight upon the “Who the f*ck are you? What do you even do here?” incident. However, the FWC went on to find that the dismissal was harsh because the substance of this allegation was never truly put to Mr Keenan; he was only asked general, open questions and was therefore provided with no opportunity to respond. Further, the FWC considered 8 additional matters to be relevant to the harshness of Mr Keenan’s dismissal, as follows:

  1. The lack of any work consequences of the conduct;
  2. The prior work record of Mr Keenan;
  3. The isolated and aberrant nature of Mr Keenan’s conduct;
  4. The role of alcohol in Mr Keenan’s conduct;
  5. The service of alcohol at the Christmas function;
  6. The alternatives to dismissal available to LBAJV;
  7. The personal consequences of dismissal for Mr Keenan (he had been unable to gain alternative employment); and
  8. The differential treatment between Mr Keenan and another employee who engaged in sexual harassment.

As a result, the FWC concluded that Mr Keenan had been unfairly dismissed. The parties have been asked to return for a short hearing regarding the appropriate remedy – which may see Mr Keenan get his job back!

To summarise, procedural fairness is paramount in the investigation process. If an employee is not made fully aware of the allegations against him/her, it will be open for the FWC to find the dismissal to be unfair and overturn it.

Please contact a member of Lynch Meyer’s Workplace Relations team if you require assistance in investigating employee misconduct.

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