John Keron v Westpac Banking Corporation [2022] FWC 221
Introduction
On 28 April 2021, Mr John Keron (Mr Keron) filed an application with the Fair Work Commission (the FWC). Mr Keron alleged he was unfairly dismissed by Westpac Banking Corporation (Westpac). A Westpac internal inquiry found that Mr Keron had inappropriately touched a female employee and verbally abused another.
As a result, he was dismissed after an unblemished 35 years with the company. The Deputy President found that Westpac did not unfairly dismiss Mr Keron, given the evidence and circumstances.
Facts
On 10 March 2021, Mr Keron attended a workshop organised by Westpac. The workshop attendance was compulsory, starting from 8.30 am to 4 pm. Following the workshop, Mr Keron went to a networking event (the Sundowner) organised by Westpac at The Camfield, which ended around 7 pm.
By then, most Westpac employees had left the Sundowner, with Mr Keron and several others remaining. After the Sundowner ended, Mr Keron purchased drinks on his personal card until 9.26 pm. By that time, Mr Keron was intoxicated, having had much to drink over five hours at The Camfield.
Similarly, another bank employee (Witness A), from a different branch to Mr Keron, who attended and stayed back after the social event said Mr Keron appeared tipsy. Mr Keron had not previously met Witness A, and they had a brief conversation that evening.
Incident one
Around 9.45 pm, a CCTV camera at the Camfield captured Mr Keron conversing with three other male employees when Witness A intervened between the men. Mr Keron spoke to Witness A, turned away and proceeded to have a conversation with another man. Witness A followed Mr Keron, talked to him again, put her arms on Mr Keron’s shoulder, and then touched his back before she walked to a waist-high bar table. Mr Keron proceeded to stand beside her and grabbed her buttocks with his hand before moving his hand upwards towards her waist.
Incident two
After The Camfield, most of the remaining employees walked to the Crown Casino. Mr Keron argued that he intended to go home after leaving The Camfield but decided to get a burger before getting an uber back home from the casino.
At approximately 10.30 pm, as Mr Keron walked to the taxi rank, he saw Mr Parker. After meeting Mr Parker, they decided to enter the casino but were refused entry. It was later found out that Ms Smith, who had been with the group at The Camfield, told the security guard to refuse them entry because Mr Keron and Mr Parker were drunk and had been refused entry to the casino prior.
Mr Keron shouted vulgarities in the direction of Ms Smith. Mr Keron then got into a taxi and went home.
Internal investigation and dismissal
The next day on 11 March 2021, Witness A reported the first incident to her line manager. Subsequently, on 14 March 2021, Witness A made a police report regarding the first incident. As a result, an internal investigation was undertaken and recommended issuing a ‘show cause’ notice to Mr Keron, however, Westpac decided to terminate Mr Keron’s employment after reviewing the two incidents. In addition, criminal charges against Mr Keron were heard on 16 November 2021. Mr Keron was charged and subsequently released on bail.
Issue
The issue for determination was whether Mr Keron was unfairly dismissed due to the incidents that transpired in The Camfield and the Crown Casino on 10 March 2021.
Decision
Section 385(b) of the Fair Work Act 2009 (Cth) (the FW Act) provides that a person is unfairly dismissed if the dismissal was harsh, unjust or unreasonable. In addition, section 387 of the FW Act provides factors that the FWC must take into account to determine whether the dismissal was harsh, unjust or unreasonable. Relevant to this case summary was the issue of whether there was a valid reason for the dismissal related to Mr Keron’s capacity or conduct.
Additionally, for the dismissal to be valid, the reason for the dismissal should be “sound, defensible or well-founded” and not “capricious, fanciful, spiteful or prejudiced”. The employer carries the onus to establish a valid reason for the dismissal and to prove that the misconduct has occurred. Hence, an employee’s conduct justifying dismissal is a matter of fact-finding, and the Deputy President’s reasoning is outlined below.
Was Mr Keron’s conduct towards Witness A unreasonable, uninvited, and unwelcome?
Westpac’s Discrimination, Harassment and Bullying Policy (the DHB Policy) provides that the behaviour must be unreasonable, uninvited and unwelcome, that a reasonable person would consider the behaviour to offend, humiliate and intimidate or threaten. Further, Westpac’s Sexual Harassment Policy provides that the behaviour must be unwanted, unwelcome and uninvited.
Importantly, the Deputy President noted that the bar for consent for physical and sexual interactions had been raised considerably, even more so in a working environment.
Notably, the fact that Witness A initiated physical contact with Mr Keron did not imply that he could touch her in an intimate manner or location.
Finally, when considering the second incident, a reasonable person would consider yelling profanities at a co-worker in a public venue, such as a casino to be offensive, humiliating and threatening.
Did the conduct occur outside the course of his employment?
The employees had been socialising and drinking hours after the Westpac organised workshop and Sundowner concluded.
Relevantly, the employees were at the location because it was compulsory to attend the workshop during the course of their employment and, subsequently, the Sundowner. The Deputy President was satisfied that the period between the Sundowner’s formal conclusion and the departure from The Camfield constituted an extension of the Sundowner event and came within the scope of employment.
The Deputy President noted that there was still a connection to employment even though the event took place at a different location and did not require employees to wear Westpac uniforms or have Westpac signage.
However, the Deputy President found, in relation to the second incident, that there was insufficient connection to Mr Keron’s employment to form a valid reason for dismissal. Mr Keron and Ms Smith did not know each other, had parted ways with their work colleagues and were on their way home.
Compliance Impact
This case illustrates that the primary consideration in determining whether out-of-hours conduct constitutes a valid reason for dismissal is whether the conduct has a sufficient connection to the employment. Therefore, it is essential to ensure that the policies are up to date and consider networking and social situations.
It is also important for organisations to have responsible service of alcohol during these events and senior staff present to ensure the safety of its employees.
