FWC Reinstates Employee Terminated for Engaging in Horseplay

The Fair Work Commission has quashed the termination of an employee for engaging in horseplay at work, primarily on the basis that the employer had ignored similar behaviour in the employee's past. It highlights the need for employers to be consistent and transparent when responding to allegations of unacceptable behaviour, particularly where it may lead to a disciplinary process, including termination.

The employee, GB, has been employed by KDR Victoria Pty Ltd (the company), which trades as Yarra Trams, for over eleven years as a tram driver. He was dismissed following a single incident on 23 February 2022 in which he raised his knee in jest towards a colleague's groin. The colleague made no complaint against GB's behaviour, but the matter was reported.

Regarding the current incident, which was captured on CCTV, GB claimed that he did not intend to make contact with his colleague, BP, nor did he do so. Rather, he claimed that he raised his knee in a playful gesture as a joke and that he had known BP for many years, and they had a good relationship.

Two days after the incident, at the end of his shift, GB was approached by his depot team manager and handed a letter. The letter informed him that he was suspended from work in connection with a complaint that involved allegations of misconduct.

As Deputy President Alan Colman suggested, there were significant deficiencies in the letter. It did not say what the alleged misconduct was; it did not identify the complainant or when the alleged misconduct was said to have occurred. The letter stated that he was not to attend work during the investigation, which was expected to last three to four weeks.

Understandably, GB said he was in shock and had no idea what the alleged misconduct was. He asked both his supervisor and manager for details but was told they were unable to disclose any details and that he needed to go home. As the Deputy President described the situation, "For several days, Mr (B) was in a Kafkaesque limbo: like Josef K in The Trial, he had been accused of something serious, but no one would tell him the charge". Following a show cause process, GB was dismissed at a meeting on 10 May 2022.

A critical factor in the case for the Deputy President was that some ten months earlier, GB had been spoken to by his manager about another incident in which he had jokingly kneed the same colleague in the back. He was told not to do this again but was not given a written warning per company procedures.

The Deputy President was also concerned that management had failed to communicate their expectations of appropriate behaviour to the workforce, noting,

"Mr (S) acknowledged that drivers had not been told which forms of horseplay were acceptable and which were not. If (he) could not clearly draw the line, how could Mr (B) be expected to do so?".

In summary, the Deputy President noted, "I find that Mr (B's) conduct was inappropriate. However, seen in its proper context, it was not a grave matter. It was not misconduct … (as shown on the CCTV footage) As Mr (B) walks off the screen, Mr (P) continues to talk to him and puckers his lips, appearing to blow Mr (B) a kiss, and then smiles. There is no indication in the video that Mr (P) objects to the behaviour of Mr (B)".

The Deputy President also determined in regard to the earlier incident, Mr B had not been told that he could be sacked if there was a recurrence of his conduct.

In determining that reinstatement was the appropriate remedy, Deputy President Colman accepted GB's evidence that

"…. If he were reinstated, he would bear no grudges, put the past behind him, shake hands with his managers and get back to doing the job he loves".

GB v KDR Victoria Pty Ltd t/a Yarra Trams [2022] FWC 2527 (21 September 2022)

For queries about allegations of misconduct, workplace investigations, issuing warnings, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.