The employee was at a workplace social club function on a Friday night at a bar where drinks and food were paid by the company over a fixed period. Prior to the event, a manager held a meeting reminding all employees that responsible behaviour would apply as they were representing the company.

The ex-employee gave evidence he was ‘shirt-fronted’ by a patron of the hotel and, while stepping backwards to put space between himself and the patron, the patron fell. The employee claimed he was then restrained by a relationship manager from his workplace. Commissioner Williams chose to prefer evidence from a witness who stated that while the patron had initiated the contact with the employee and fallen on the ground, most likely due to a slippery floor, the employee then stood over the patron with a raised arm and clenched fist as if he was about to punch the patron. The relationship manager stood in to separate the two men, to which the employee responded “get your f***ing hands off me.”  The employee was asked to leave the venue three times before he complied.

After the incident, on the following Sunday evening, a text message was sent to the employee’s work phone to advise he had been stood down pending an investigation, which the  applicant claimed he had not received, so returned to work the next day. When he was advised by his manager of the contents of the text the employee responded in an aggressive manner. The employer conducted an internal investigation where they obtained statements from 12 employees who were present at the incident in the bar. The employee attended a meeting with his solicitor and was given an opportunity to respond to 36 allegations, which related both to this incident and a previous incident in 2014 for which he had received a first and final warning in relation to aggressive behaviour. After considering his response, his employment was terminated by his employer.

The Commission also heard the employee approached the manager of the bar, who had viewed security footage after the incident, and sent an email which echoed his later version of events stating the incident “may have looked to others like a scuffle”. In the hearing, the applicant submitted the company should have requested the CCTV footage, however Commissioner Williams deemed employers are not expected to conduct forensic investigations like a police investigation.

Commissioner Williams considered that while the conduct occurred outside of normal working hours, the employee’s initial reaction to the patron had potential to damage the reputation of the company and serious further damage came from the applicant threatening the fellow employee who pulled him off the patron, as well as abusing the managing director and refusing to leave. Furthermore, the aggressive behaviour as a response to his standing down was disproportionate given the circumstances. Commissioner Williams thus dismissed the application.

This case highlights the importance of correctly handling investigations of misconduct which may occur at workplace functions. Internal investigations are important for ensuring reports of bullying, harassment, discrimination and serious misconduct are adequately dealt with. Attend our Investigations in the Workplace course on 24 January to learn what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.