Introduction
In the case of Evelyn Josey v OS MCAP Pty Ltd, the Fair Work Commission addressed the boundaries between out-of-hours conduct and workplace responsibilities. Ms. Evelyn Josey, a FIFO production technician employed by OS MCAP Pty Ltd (OS MCAP) at their Daunia mine site in Queensland, was dismissed after incidents involving harassment and sexual harassment at an airport lounge and onboard a flight. She argued that her conduct occurred outside work hours in a social setting. However, Commissioner Durham ruled that because the conduct involved colleagues during work-related travel, it was directly connected to her employment. As Durham noted, even out-of-hours conduct can justify dismissal when it damages the employment relationship.
Case Analysis: Evelyn Josey v OS MCAP Pty Ltd (2024)
In Evelyn Josey v OS MCAP Pty Ltd, the Fair Work Commission considered the impact of out-of-hours conduct during work-related travel. Ms. Evelyn Josey, a FIFO technician, was dismissed following incidents of harassment and sexual harassment at an airport lounge and onboard a flight to her worksite. Ms. Josey argued that her behaviour occurred outside of work hours in a social setting with a colleague she considered a friend, and therefore should not be subject to employment regulation.
Background and Facts
On 18 July 2023, Ms. Josey arrived at Brisbane Airport, heavily intoxicated, to fly to the Daunia Mine in Queensland, where she was scheduled to work. While at the Qantas lounge, she approached a colleague and rubbed her body against him. Witnesses described her as “loud and boisterous,” with her colleague appearing uncomfortable and embarrassed by the interaction. Although there was an allegation that she had grabbed her colleague’s genitals, this claim was not substantiated. OS MCAP found her behaviour amounted to harassment.
Later, during the flight, Ms. Josey was seated next to another colleague. She allegedly leaned on him, placed her head near his lap, grabbed his arm, and tried to hold hands multiple times. The other colleague described feeling “extremely uncomfortable and embarrassed” by her actions but refrained from asking her to stop due to concerns that she might escalate the situation.
Investigation and Dismissal
OS MCAP conducted an internal investigation, interviewing several witnesses, including the two employees involved. The colleague’s evidence was gathered through an interview, but he did not participate in the hearing. The investigation determined that Ms. Josey’s actions in the lounge constituted harassment, while her conduct on the flight amounted to sexual harassment.
Ms. Josey participated in a show-cause process, acknowledging her struggles with alcohol, which had worsened following the breakdown of her 26-year relationship in December 2021. She denied the incidents occurred as described, contending that her behaviour happened in a social setting outside of work hours. She requested a transfer to another site instead of dismissal. However, OS MCAP dismissed her, citing serious breaches of its Code of Conduct, Employee Handbook, and Charter of Value and Respect.
FWC’s Ruling
Ms. Josey argued that her conduct in the lounge and on the flight was out-of-hours behaviour and therefore unrelated to her employment. Relying on the case Sydney Trains v Andrew Bobrenitsky [2022] FWCFB 32 she contended that her actions did not have a sufficient connection to her work, noting that OS MCAP did not require her to be in the lounge and did not pay her for her time there. She further argued that she had not planned to meet colleagues and only interacted with him because they happened to see each other in the lounge.
However, OS MCAP countered that Ms. Josey’s behaviour had a clear connection to her employment. She was at the airport and lounge because she was traveling for work, and the flight had been booked by OS MCAP. The company also noted that she was interacting with work colleagues while in the lounge and on the flight, making the events directly related to her employment.
The Commission agreed with OS MCAP, finding that Ms. Josey’s actions, even if considered out of hours, had a clear and direct connection to her employment. Commissioner Sharon Durham stated, “Even if the technician’s conduct could be considered out of hours, it is well established that out-of-hours conduct can be a valid reason for dismissal where the conduct… 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 FWC upheld the dismissal, concluding that Ms. Josey’s behaviour amounted to serious misconduct. Commissioner Durham acknowledged that Ms. Josey’s intoxication may have impaired her judgment, but emphasized that it “cannot and does not excuse her actions.” The FWC found that her conduct, both in the lounge and on the flight, breached OS MCAP’s workplace policies and provided a valid reason for dismissal.
Key Takeaways for Employers
- Out-of-Hours Conduct: This case underscores that out-of-hours conduct involving colleagues, especially during work-related travel, can lead to dismissal if it damages workplace relationships or violates company policies.
- Thorough Investigations: OS MCAP’s detailed investigation, including witness interviews and proper documentation, ensured a fair process before making the decision to dismiss Ms. Josey.
- Employer Responsibilities: Employers must continue to ensure a safe and respectful workplace, even during out-of-hours work-related events or travel. The FWC emphasized the employer’s obligation to protect employees from harassment, regardless of the setting.
- Intoxication Does Not Excuse Misconduct: The FWC ruled that intoxication is not a defense against serious misconduct, especially when it leads to violations of workplace policies.
Conclusion
The decision in Evelyn Josey v OS MCAP Pty Ltd reinforces the importance of professional conduct in out-of-hours settings. Employers must have clear workplace policies addressing out-of-hours behaviour, particularly in work-related contexts, and should act decisively when such conduct breaches those policies. Employees, meanwhile, should remain aware that their actions, even outside of work hours, can still have serious consequences for their employment.
s.394 - Application for unfair dismissal remedy - Evelyn Josey v OS MCAP Pty Ltd (U2024/386) COMMISSIONER DURHAM BRISBANE, 2 OCTOBER 2024
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