An employee has been reinstated by the Fair Work Commission after it was found his dismissal for “horseplay” was disproportionate and his employer failed to adhere to disciplinary processes.
The employer, Yarra Trams, dismissed a tram driver after an incident with a colleague. The incident involved horseplay between two colleagues, one shouted at another for “stealing” bread, as a playful punishment the tram driver mimed kneeing his colleague in the groin while walking past but did not make contact.
The tram driver claimed the gesture was just a joke and that he had a good rapport with his colleague. This followed a previous incident a year earlier where the tram driver prodded his same colleague in the back with his knee, maintaining it was a joke and they both laughed about it.
Following the first incident, the manager spoke to the driver as described by the employee in a casual chat where he was told such horseplay was not acceptable. The manager described this chat as a verbal warning and said that any similar behaviour could result in disciplinary action or dismissal.
This discrepancy between the employee’s and manager’s interpretation of the discussions contributed to Fair Work’s decision to side with the employee. They agreed that the manager had failed to give the employee a warning or tell him similar behaviour could lead to dismissal. Fair Work also accepted that the tram driver interpreted the conversation to mean that he should not make physical contact with colleagues.
As a result of the second incident, the employee was suspended for misconduct by his manager. After an investigation and several meetings, the company found the misconduct allegation substantiated. The tram driver apologised profusely and promised to never engage in similar behaviour but was dismissed.
Fair Work decided that the behaviour was inappropriate but did not constitute misconduct. They also decided the two incidents were considerably different, one involved moderate force and repeated contact whereas the other involved no force or contact. Fair Work decided that the employee only engaged in silly pantomime and the employer did not clearly communicate expectations to the employee. The manager acknowledged, employees had not been told which forms of horseplay were acceptable and which were not, therefore the dismissal was disproportionate and harsh.
The company was also found to have breached its enterprise agreement by failing to follow the disciplinary procedure and provide procedural fairness. The dismissal was unfair because the employee was terminated without a valid reason and the approach to horseplay was inconsistent, other employees were not disciplined for similar behaviour, making the dismissal harsh.
As a result of the employer’s breach, the employee was reinstated and awarded $29,000 in lost wages.
How This Impacts Your Businesses:
Ensure you’re following the correct disciplinary process when dealing with employee misconduct. This includes a verbal warning, notification of a disciplinary meeting, allowing the employee to respond to claims and considering their response before delivering an outcome. This can be defined in a Disciplinary Policy.
Ensure you’re clear with your employees about what behaviour is appropriate at work and what is not. This can be done both in writing via a Code of Conduct but also in the way behaviour is accepted and spoken about day to day. By turning a blind eye to poor behaviour, your business can be seen as condoning it.
In a situation like this, it is important to receive expert and personalised HR Advice, to ensure your business is not at risk of similar unfair dismissal claims. ProcessWorx HR Advisors have extensive experience dealing with termination and mitigating the risk of unfair dismissal. If you have queries or want advice personalised to your business, contact us on (08) 9316 9896, or email enquiries@processworx.com.au.
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