Out of service: Server dismissed for inappropriate conduct towards co-workers

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.

Of course, proper training and well considered policies can go a long way to ensuring employees understand what is expected of them but occasionally, an employee will still not appreciate that their conduct violates their employer’s standards.

The Fair Work Commission (FWC) was recently required to consider an unfair dismissal application involving these issues in the decision of Montes v The Star Casino [2020] FWC 874.

The employee in this case was a Food and Beverage Server at The Star Casino in Sydney. In the first few weeks of his employment, he was issued with a written warning following a complaint from a colleague that he sent her inappropriate text messages.

The Star’s written warning to the employee clearly advised him that he was expected to comply with its policies and code of conduct. Following the written warning, the employee was also re-trained in The Star’s standards relating to workplace conduct, twice.

Three further incidents then occurred involving inappropriate conduct, which The Star claimed were in violation of its policies, code of conduct, values and Star qualities:
  • The employee tapped a co-worker on the bottom using an empty serving tray;
  • The employee made inappropriate comments to an assistant manager about her appearance and “attractive attributes”; and
  • After being notified of a meeting to discuss his conduct, the employee responded to a manager via email asking her (amongst other things) to take it easy on him “Otherwise I will raise HELL for THE STAR… My word reveals a tendency to become law over the years.”

The employee was subsequently suspended while an investigation into his conduct was undertaken. The Star then met with the employee two days later and gave him the opportunity to respond to the allegations against him. At the end of that meeting, the employee was dismissed and provided with a brief letter confirming the termination of his employment. A number of days later, The Star provided the employee with a further termination letter setting out in greater detail the reasons for the termination.

The employee made an application to the FWC, claiming that he was unfairly dismissed and seeking reinstatement.

The employee claimed that the complaints against him were frivolous and without substance. He claimed that tapping his co-worker on the bottom was not inappropriate and he was “innocent of that charge.” He claimed that the reactions of the two individuals involved in the other complaints against him were “unwarranted and unreasonable.”

The employee also argued that if he was required to comply with the standards of conduct set out in the earlier written warning, “You would have to be asking me to live in an unbearable burden of paranoia if every step I took and everything I did I had to refer back to that warning. It is completely unreasonable.”

He also accused his co-workers of entrapping him by granting and then withdrawing trust, and reversing their attitudes in a way that was unexpected and unforeseeable.

In short, the employee claimed that there was no valid reason for his dismissal.

The Star disagreed with the employee. It argued that the employee had engaged in highly inappropriate conduct in the workplace that had resulted in three separate complaints. The Star claimed that the employee was aware of what was expected of him because:
  • The Star maintained clear policies and procedures that applied to the employee’s conduct, including:
    • The Star Entertainment Group Equal Employment Opportunity Policy;
    • The Star Entertainment Group Code of Conduct;
    • The Star Entertainment Group Misconduct and Discipline Policy;
    • Star Qualities; and
    • Star Values.
  • The employee had received training and re-training in The Star’s expectations regarding workplace conduct; and
  • The employee had received an earlier written warning clearly setting out The Star’s ongoing expectations.

The Star claimed that, despite its attempts to work with the employee to improve his understanding of appropriate workplace conduct, he refused to accept any responsibility for his actions or accept that they were in any way inappropriate. Therefore, there was a valid reason for his dismissal.

The FWC agreed with The Star, finding that there was a valid reason for the dismissal and that the process followed by The Star had been procedurally and substantively fair.

The FWC commented,

"[The employee’s] conduct indicates that he does not either understand or support The Star’s policies on appropriate workplace conduct. He was bound to comply with these policies but didn’t. Given his conduct, combined with his lack of remorse, I am satisfied that there was a valid reason to dismiss him." [at paragraph 57]

The employee’s application was dismissed.

Lessons for employers

In this case, The Star had maintained good policies, issued a written warning, conducted re-training and engaged in a fair disciplinary process.

The result was that the action taken by The Star was found to reasonable and fair.

Employers should take note of the processes and approach of The Star in this case as an example of how to consistently, reasonably and fairly manage a situation where an employee repeatedly engages in inappropriate workplace conduct.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law.Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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