On 2 October 2024 the FWC handed down its decision in the case of Evelyn Josey v OS MCAP Pty Ltd [2024] FWC 2731, in which a former FIFO employee at OS MCAP’s Daunia mine site alleged that she had been unfairly dismissed for serious misconduct which took place out-of-hours in an airport lounge and during a flight to site.
OS MCAP submitted that the conduct constituted harassment and sexual harassment, which went against its policies and legislated positive duty to eliminate sexual harassment in the workplace.
Commissioner Durham of the FWC found that there was a valid reason for the employee’s dismissal, and that the dismissal was not unfair.
Ms Josey was formerly employed by OS MCAP as a production technician at its Daunia mine site. On the day that the alleged serious misconduct occurred, she and other employees of OS MCAP were catching a flight from Brisbane Airport to Moranbah where the mine site is located. The flight had been booked and paid for by OS MCAP, and Ms Josey was rostered for a shift the following day.
While waiting in an airport lounge for her flight, Ms Josey was observed to be extremely intoxicated and also drinking. She approached a group of co-workers who were also sitting in the lounge, turning her back to a male co-worker and rubbing her body up against him. OS MCAP later found that this conduct amounted to harassment.
After boarding the flight, Ms Josey was also observed acting inappropriately towards another co-worker who she had been seated next to. OS MCAP alleged that Ms Josey had placed her head near this co-worker's lap, grabbed his arm and tried to hold hands with him multiple times. OS MCAP later found that this conduct on the plane amounted to sexual harassment.
Ms Josey ended up not working her rostered shift the next day due to still being under the effects of alcohol, and instead returned home and took a period of 5 weeks’ personal leave.
While Ms Josey was on personal leave, OS MCAP was made aware of the two incidents and began to conduct an internal investigation. OS MCAP interviewed several witnesses, including the two employees that had been subjected to Ms Josey’s inappropriate conduct.
When Ms Josey returned to work, she was called to attend a meeting and notified about the allegations made against her. She was also stood down on full pay and instructed to return home while the allegations were investigated.
OS MCAP later had a discussion with Ms Josey over the phone and put the allegations to her, as they had been formulated throughout the investigation process. An email was also sent to Ms Josey requesting an interview relating to the investigation and outlining the allegations against her. The email also advised that if the allegations were substantiated, then it could amount to a breach of OS MCAP’s code of conduct.
An interview was then conducted with Ms Josey and her support person. With Ms Josey’s consent, the interview was recorded and a transcript was made available.
Approximately one month later, Ms Josey was advised that the investigation was completed and received a letter outlining the findings of the investigation. OS MCAP found that Ms Josey’s alleged conduct in the airport lounge amounted to harassment, while her conduct on the plane amounted to sexual harassment. These actions constituted serious misconduct and breached multiple OS MCAP policies and procedures.
Ms Josey was asked to show cause as to why disciplinary action should not be taken against her, and remained stood down on full pay. She provided a written response, in which she suggested that instead of disciplinary action being taken against her she should be transferred to another site.
Ms Josey and her support person were called 3 days later and informed that OS MCAP had made the decision to terminate her employment. She received a formal notice of termination later the same day and was paid 5 weeks’ pay in lieu of notice.
Ms Josey submitted to the FWC that her conduct in the airport lounge was out-of-hours conduct that occurred in a social setting with a friend, therefore it was not subject to regulation and disciplinary action by her employer OS MCAP. On the other hand, OS MCAP submitted that there was a clear and sufficient connection between the conduct and Ms Josey’s employment.
Commissioner Durham found that Ms Josey would not have been at the airport in the first place, if not for her employment with OS MCAP and need to board a flight to commence her rostered shift. In addition, the airport lounge was not considered as being separate from the airport itself.
Commissioner Durham also observed that “it is well established that out of hours conduct can be a valid reason for dismissal where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and the employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee”. The Commissioner accepted that Ms Josey’s conduct in the airport lounge was likely to do all of these things.
The Commissioner also found that both the airport lounge conduct and in-flight conduct did in fact occur, and these respectively constituted harassment and sexual harassment which breached OS MCAP’s policies and procedures. Noting an employer’s positive duty to eliminate sexual harassment in the workplace and obligations to protect employee health and safety, Commissioner Durham found that there was a valid reason for Ms Josey’s dismissal.
In addition to having a valid reason for the dismissal, OS MCAP did the following:
Commissioner Durham therefore found that Ms Josey’s dismissal was not unfair.
For specific advice on how to navigate and address improper conduct or misconduct committed by an employee, please contact a member of our Workplace Relations and Safety Team.
Written by Grace Pham, Law Graduate