Introduction
In a recent (June 2024) Fair Work Commission (FWC) case, the dismissal of a boilermaker accused of drawing a penis on a client’s fuel tanker was upheld, providing valuable insights for employers on handling misconduct allegations.
The Incident
In October 2023 , Joshua Robinson, a boilermaker at Wulguru Steel, was accused of using a grinder to etch the picture of male genitalia and the words “Skinny Pe” into the paint work on the roof of a tanker owned by Puma Energy Holdings Pty Ltd (Puma Energy). At the time, work was being undertaken on the tanker by Wulguru Steel Pty Ltd (Employer) and apprentice on site was known as ‘Skinny Pete’.
Investigation
After a brief investigation, Wulguru Steel’s General Manager concluded that Robinson was responsible, reportedly based on Robinson’s admission during a meeting. This led to the Robinson being sacked for serious misconduct. However, Robinson later denied the accusation and making any admissions and sought almost $25,000 in compensation for unfair dismissal.
The Legal Findings Commissioner Leigh Johns was tasked with determining whether Robinson had indeed committed the act and whether his dismissal was justified.
Robinson’s defense was described by Commissioner Johns as “all or nothing,” with Robinson denying any wrongdoing entirely. However, this approach ultimately worked against him.
The Commissioner suggested that the Employee might have been better off admitting the conduct and claiming it was a ‘brain fart’ or found some other reason why he drew the graffiti instead of choosing an all-or-nothing defense by steadfastly denying the conduct entirely. Commissioner Johns stated “that reason may not have excused his behaviour, but it may have explained it. It may have caused me to downgrade the seriousness of the conduct. However, in the present matter that is not how the Employee played his cards. He denied he engaged in the conduct at all. It was an all or nothing defence." (FWC Decision, Para 71)
Moreover, despite Robinson’s denials, the evidence—including witness testimony and contemporaneous documents—was sufficient to satisfy the Commission that Robinson had indeed drawn the graffiti. The Commissioner was particularly influenced by the lack of motivation for the other witnesses to fabricate their accounts and the serious implications of finding Robinson dishonest.
Implications for Employers This case underscores several critical lessons for employers:
- Thorough Investigation: Employers must conduct a comprehensive investigation into alleged misconduct, ensuring that all relevant evidence is gathered and considered.
- Documentation: Proper documentation of the investigation process and disciplinary meetings is crucial. In this case, notes taken by the General Manager and references in the termination letter were key pieces of evidence.
- Balance of Probabilities: Employers should understand that the balance of probabilities requires more than just weighing the likelihood of events; it demands a subjective belief in the facts, supported by credible evidence.
- Employee Credibility: An employee’s defense strategy can significantly impact the outcome of a case. In this instance, Robinson’s decision to deny the conduct entirely, rather than offering an explanation, weakened his position.
- Impact on Reputation: The FWC also considered the potential damage to the employer’s reputation and business relationships, which played a role in justifying the dismissal.
Conclusion The FWC’s decision to uphold Robinson’s dismissal highlights the importance of credible evidence, thorough investigation, and careful documentation in addressing workplace misconduct. The decision also highlighted that a single act of misconduct, particularly one involving dishonesty, can be sufficient grounds for termination if it significantly harms the employer’s interests. Employers should take note of the lessons from this case to ensure that they are well-prepared to handle similar situations effectively.
For a detailed examination of the case, refer to the FWC document. Joshua Robinson v Wulguru Steel Pty Ltd(U2023/10605) COMMISSIONER JOHNS MELBOURNE, 13 JUNE 2024
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