In the media of late there have been a number of cases concerning ‘out of hours conduct’ related dismissals at the Fair Work Commission (FWC). It may surprise some that in a few of these cases, it has been found that the employee was unfairly dismissed even with the evidence presented it may have seemed obvious that there was a valid reason for dismissal.
When determining whether or not an employee was unfairly dismissed the FWC will take into consideration not only the immediate facts around the dismissal but also whether the dismissal was harsh, unjust or unreasonable. As shown in the recent case of Keenan v Leighton Boral Amey Joint Venture [2015] FWC 3156 (26 June 2015) an employee was found to have sexually harassed female staff and verbally abused his superiors by telling them to f… off during a Christmas Party. The FWC found that most of the activity relating to the reason for dismissal did not constitute the workplace and the presiding Commissioner also found that during the subsequent investigation the ‘substance’ of the allegations were not put to the employee and therefore he was not afforded the proper opportunity to respond.
