Dismissal of an employee who harassed a colleague outside the workplace upheld
The Fair Work Commission found the conduct of an employee constituted bullying and was a valid reason for dismissal despite occurring outside the workplace, as there was ‘a relevant connection to the employment relationship’.
X was an employee of Mount Thorley Operations who had been repeatedly bullied by two other employees, Mr Neuss and Mr Fay over a period of time. Mr Kedwell did not engage in these incidents, however joked about the mistreatment and was a friend of both Mr Neuss and Mr Fay.
On 11 February 2016, X alleged that Mr Neuss, Mr Fay and Mr Kedwell engaged in bullying by preventing him from changing lanes and taking the right hand turnoff while driving home after work. He claimed they knew he had to turn right, and drove behind one another in the right hand lane, speeding up or slowing down to prevent him from merging.
X claimed that prior to this, he had seen Mr Neuss, Mr Fay and Mr Kedwell speaking outside the bathhouse, but they stopped talking when they saw X leave. X submitted he got into his car, and the three other employees similarly got into their cars.
Mount Thorley conducted an investigation into X’s claims. It interviewed a number of witnesses, where it was found:
- One witness, the former Maintenance Electrician at Mount Thorley submitted evidence that the traffic slowed from 100km/hr to around 20km/hr, and he noticed Mr Neuss and Mr Fay’s cars following each other in the right hand lane. He submitted that when he asked Mr Neuss about the incident, Mr Neuss replied that ‘we were just playing with … [X] to stop him from turning right.’
- The Regional Asset Manager said he reduced his speed from 100km/hr to around 30 to 40km/hr and noticed a bunching of three cars in the right hand lane travelling at slow speeds.
- The Field Crew Dayshift Manager submitted he saw a line of traffic with Mr Neuss’s car at the front. When he asked Mr Neuss what had happened, Mr Neuss replied, ‘I missed a gear so I just chugged up the hill.’
Mr Kedwell conversely claimed he travelled at around 80km/hr.
Due to the incident, Mr Kedwell was told he was being stood down on full pay pending an investigation and was told not to discuss the incident or his being stood down. Despite this direction, the Commission found he discussed these details with Mr Fay and Mr Neuss.
The investigation led to Mr Kedwell’s dismissal as he allegedly breached his obligations under the Rio Tinto Anti-Discrimination, Sexual Harassment and Bullying Policy (Bullying Policy) and the Rio Tinto Code of Conduct.
In the past, Mr Kedwell had been issued a final warning in relation to an isolated incident in 2010 and was issued a final warning regarding unsafe behaviour and bullying in 2014.
Mr Kedwell denied the allegation of bullying and sought relief from unfair dismissal.
The Commission found Mr Kedwell had engaged in bullying. Although he had not engaged in any prior bullying of X, the evidence presented by Mr Kedwell often conflicted with the account of others and he changed his position, making him an unreliable witness. This led the Commission to favour the evidence of other witnesses.
The incident itself was not covered by the Bullying Policy because it did not occur in the workplace. However, the Commission found the plan was created outside the bathhouse, which was in the workplace and thus covered by the Bullying Policy.
Further, an employee may extend supervision to the private activities of employees where the out of hours conduct has a ‘relevant connection to the employment relationship’. The Commission found the incident had a ‘relevant connection’ because it was planned at work, it was a continuation of the harassment that occurred at work, the harassment took place on the way home from work, the harassment affected relationships between employees and there was a real risk that people could have been seriously injured by the conduct, potentially adversely affecting Mount Thorley’s reputation. Therefore, the incident could be used as a valid reason for dismissal.
In addition, the fact that Mr Kedwell had been issued a final warning for bullying in the past was ‘highly material’.
Although Mr Kedwell had a wife and child who were financially dependent on him and he had been unable to find work that would cover his mortgage and living expenses, his conduct was ‘unreasonable, without justification or provocation, and serious’. As a result, the termination was not disproportionate.
* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.