By Mike Toten Freelance Writer
An employee who groped a male co-worker in an airport lounge while intoxicated, and while they were waiting for a flight to their workplace, and then harassed another co-worker while on the subsequent flight, was dismissed for a valid reason. The Fair Work Commission (FWC) held that the incidents occurred within the course of employment, and therefore amounted to misconduct justifying dismissal. The employer had a positive duty to take steps to prevent sexual harassment.
Facts of case
The employee and her male co-workers were fly-in-fly-out mine workers. She entered the airport lounge for a flight to the mine while already intoxicated, then bought more drinks and joined a group of co-workers.
The employer received two complaints from co-workers about her conduct in both the lounge and on the flight. After investigation, it concluded that she had been intoxicated and had:
- Rubbed her body against a male co-worker and touched his genitals
- On the flight, she placed her head near the lap of another male co-worker and grabbed his arm, stroked his leg and tried to hold hands.
The co-workers gave evidence that they felt very uncomfortable and embarrassed by the employee’s conduct, but tried to ignore or avoid it so as not to inflame the situation. One claimed that he continued to feel anxious and stressed about travelling.
The employer then dismissed her for sexually harassing co-workers.
The employee denied that the conduct occurred, and claimed that anything she may have done did not occur “at the workplace” and was outside working hours. Further, the action of placing her head near a colleague’s lap could be compared to falling asleep during a flight. Also, she had become more dependent on alcohol to cope with the recent ending of a long-term relationship.
However, the FWC said that the reason she and the co-workers met each other was to board a flight to their workplace that the employer had booked for them, and therefore this was “in the course of employment”.
Decision
The FWC rejected the woman’s claim of unfair dismissal. The employer had a positive duty to prevent sexual harassment at work and a duty to protect the safety and health of its employees. Waiting for, and being on, a flight to the workplace was “in the course of employment”, so the employer was required to act.
What this means for employers
Out-of-hours misconduct, for example that which occurs while travelling to/from work, can be a valid reason for dismissal if it is likely to cause serious damage to the relationship between the employer and the employee, damage the employer's interests or reputation, or is incompatible with the employee's duties as an employee.
Sexual harassment that occurs while employees are travelling to/from work has sufficient connection to employment to be counted as being in the course of employment.
