Inappropriate behaviour can take many forms
Less than acceptable behaviour in the workplace behaviour can take many forms. From bullying and sexual harassment, to swearing, out of hours misconduct and aggression. Engaging in these forms of behaviour can often lead to a fair dismissal. However, in some cases it’s not so clear that the misbehavior justifies dismissal. Dismissals because of inappropriate behaviour is interesting information for everybody.
When an employee challenges their dismissal or suspension through the Fair Work Commission (FWC) or Australia’s courts, many factors are taken into consideration when determining if it was fair. Whether the behaviour can be proven to have taken place, and the manner in which the employer responded to it, can play a huge factor.
In this article, we look at several cases of inappropriate workplace behaviour that may shock you. You’ll also learn how such serious misconduct is dealt with by the Fair work and the courts, often with surprising results.
1. Foul-mouthed cardiologist suspended for inappropriate workplace behaviour
In the Federal Court case Muayad Alasady v Australian Capital Territory , an eminent cardiologist was suspended for multiple instances of highly inappropriate workplace behaviour. Dr Muayad Alasady, who works at Canberra Hospital, was suspended for bullying colleagues, throwing rubbish, kicking doors and swearing. In one incident when a nurse told him that a patient needed an urgent pacemaker, he said he “didn’t give a sh*t about the pacemaker.”
He also once told a colleague that another nurse “will stab you in the throat, be careful with her.” It was also alleged that Dr Alasady once left a patient anaesthetized on a table for 30 minutes prior to turning up for the procedure. When he had completed the procedure, he left the patient in the lab despite there being more he had to do.
Doctor launches Federal Court action
In response to his suspension for inappropriate workplace behaviour, Dr Alasady in June this year decided to sue the ACT and two leading figures at the Canberra Health Service. This was for what he believes was their failure to properly deal with allegations made against him.
He also sought to have his employer’s workplace investigation into his conduct stalled. This is because Dr Alasady argues that his employer had conducted preliminary assessments into his misbehavior. He argues that these assessments found that the allegations against him could be resolved or did not need investigating.
But in June, Dr Alasady had his bid to stall the investigation rejected by the Federal Court. The remaining components of his lawsuit are yet to be ruled on.
2. Handyman’s inappropriate workplace behaviour included threatening and touching co-workers
The unfair dismissal case Talevski v Chalmers Industries Pty. Ltd.  [AS1] involved a handyman who engaged in a range of inappropriate workplace behaviour. The handyman, Mr Talevski, had worked for Chalmers Industries from 1986 until 2017, when he was summarily dismissed for serious misconduct.
During his tenure at the company, Mr Talevski had:
- Abused and threatened the CFO: During a meeting with the company’s CFO, Mr Talevski swore, yelled and aggressively banged on the CFO’s desk. The CFO then directed Mr Talevski to exit his office, but he refused to do so. Mr Talevski also told the CFO that he had a “number of houses” and would personally sue him.
- Inappropriately touched the receptionist: The receptionist complained to management that Mr Talevski would regularly touch her shoulders and hair. He would also give her unsolicited hugs. When management told Mr Talevski that they wanted to speak to him about the unwelcome touching, he asked the receptionist if she had complained about him. When she tried to move away from Mr Talevski, he followed her. On one occasion, this led to the receptionist becoming distressed and hiding in the bathroom.
- Refused to follow reasonable and lawful directions: In refusing to leave the CFO’s office, Mr Talevski had failed to follow a reasonable and lawful direction. He also failed to follow a lawful and reasonable direction to not enter the building where the receptionist worked.
The Fair work Commission rules on the unfair dismissal case
At his Fair work hearing, Mr Talevski argued that his inappropriate workplace behaviour had to be considered within the context of the workplace, which was a truck depot.
FWC Deputy Hamilton conceded that context must be considered, including the nature of the workplace, which he described as “somewhat rough and tumble.” However, he said that “there is a limit” and that an employer is entitled to a “certain standard of conduct” from its workers.
Deputy Hamilton also found that Mr Talevski’s touching of the receptionist amounted to “inappropriate pressuring” of the “much younger employee.” Ultimately, Deputy Hamilton ruled that Mr Talevski’s inappropriate workplace behaviour provided a valid reason for his dismissal.
3. Drunk employee tells company director to “f**k off” at office Christmas Party
In the unfair dismissal case Keenan v Leighton Boral Amey NSW Pty , [AS2] an employee engaged in some very inappropriate workplace behaviour toward his colleagues. Stephen Keenan, a Team Leader at Leighton Boral Amey (LBA), became very intoxicated at the company Christmas party in 2014. During the party, which was held in a private room at Novotel Sydney Brighton Beach Hotel, Mr Keenan consumed around 10 beers and one vodka and coke.
Prior to the party, Mr Keenan’s manager had warned his team “don’t be that idiot that I have to deal with on Monday morning. Don’t be that person who gets blind drunk, abuses someone or punches someone”.
Employee engages in a range of inappropriate workplace behaviour while drunk
After he attempted to join a conversation at the party, Mr Keenan told the company director and a senior project manager to “f**k off.” Following that, he asked a female colleague for her phone number. Later in the night, Mr Keenan engaged in further inappropriate workplace behaviour when speaking to another female colleague. The colleague had taken umbrage to Mr Keenan’s offensive opinions about LBA’s management.
That prompted Mr Keenan to aggressively ask her “Who the f**k are you? What do you even do here?” When the Christmas party ended at 10PM, Mr Keenan joined several of his colleagues at a nearby pub. He became more intoxicated and called a female colleague a “b***h.” Mr Keenan then without consent kissed another female colleague on the lips, before telling her that he would go home to “dream” about her.
Later, Mr Keenan told another female colleague that it was his “mission” to discover the colour of her underwear. When the group moved on to a new venue, Mr Keenan was denied entry and went home.
Employee is dismissed for his inappropriate workplace behaviour
When human resources got wind of Mr Keenan’s misconduct, an investigation was conducted. This identified eight separate incidents of inappropriate workplace behaviour that Mr Keenan had engaged in. He was subsequently dismissed by LBA and shortly after made an unfair dismissal application with the FWC, seeking reinstatement.
The Fair work Commission hears Mr Keenan’s unfair dismissal case
At the hearing, Fair work Vice President Hatcher agreed that the eight instances of inappropriate workplace behaviour did in fact occur. However, with respect to determining if they justified Mr Keenan’s dismissal, VP Hatcher could only consider those incidents which took place during the hours of the Christmas party and in the private room where it was held.
We’ve previously written about the criteria that must be met for out of hours misconduct to justify dismissal. Essentially, out of hours misconduct can lead to a valid reason for dismissal if the conduct:
- Will likely seriously damage the employee-employer relationship
- Damages the employer’s interests
- Is incompatible with the employee’s duties as an employee
Considering this criteria, VP Hatcher found that Mr Keenan’s conduct after the Christmas party didn’t amount to a valid reason for dismissal. This was because his conduct took place “essentially in a private setting.” It therefore couldn’t be seen as a “repudiation of Mr Kennan’s employment contract.”
He also found that LBA’s code of conduct didn’t contain any provisions regarding social activities that take place after work hours. Nor that LBA communicated any expectation that its behavioral standards would apply beyond the time and place of the Christmas party.
Senior member of Fair work makes a surprising ruling
Regarding the inappropriate workplace behaviour at the party, VP Hatcher found that LBA had erred in their investigation. It had failed to ascertain if the incidents were factual in a manner that would allow Mr Kennan to make an informed response. It was found there was no evidence that the director took offence to being told to “f**k off.” Nor was Mr Keenan’s asking for his female colleagues’ phone number considered sexual harassment.
VP Hatcher also found that the service of alcohol at the party was a “mitigating factor.” He laid the blame partly on LBA for serving unlimited alcohol. Also, for not ensuring the venue practised responsible service of alcohol. VP Hatcher ultimately ruled that Mr Keenan’s dismissal had been unfair, inviting the parties to come to a remedy.
Have you been accused of inappropriate workplace behaviour?
As you have seen in the above cases, sometimes accusations of inappropriate behaviour can lead to a fair dismissal. But in some instances, contextual factors can play a huge part in whether there was a valid reason for dismissal. If you have been unfairly dismissed or suspended, a Whole New Approach can help. We’re Australia’s leading workplace mediators and commentators with deep experience helping workers take action through the Fair work Commission and the tribunals.
In the last 20 years, we’ve helped over 16,000 workers make an unfair dismissal claim in every state and territory. With our no win, no fee service, we can help guide you through the process to ensure your claim is a success. All workplace harassment issues, casual employee concerns and abandonment of employment, call now
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