A recent case of the Fair Work Commission involving two BHP workers reportedly punching a ‘noticeably drunk’ supervisor in the face at the Moranbah Bowls Club has highlighted the importance of restraint at work Christmas parties.
In the Drake & Bird v BHP Coal Pty Ltd  FWC 7444 case in the Fair Work Commission on the 30th October 2019, one of BHP’s dismissals of an employee was upheld and another employee was reinstated for unjust dismissal following the altercation at the Christmas party.
The Fair Work Commission heard that the reasons for BHP’s dismissal of the men. BHP highlighted to the Fair Work Commission that following an internal investigation two employees of pre-strip (Mr Drake and Mr Bird) were found to have engaged in a verbal and physical altercation with a Coal Mining Supervisor, Mr Rod Maunder.
What was the basis of BHP’s termination?
The commission heard that BHP terminated the employees on the basis of events at the party. Evidence was presented that highlighted the following:
- During the evening on 6 December, 2018 Mr Drake and Mr Bird attended the Goonyella Riverside Mine Prestrip Department “C Crew” Christmas Party at the Moranbah Bowls Club.
- At approximately 11.00 pm Mr Drake was standing at the bar next to Mr Bird and Mr Maunder, Supervisor Coal Mining. Mr Drake had a conversation as follows:
- Mr Drake: [To Rod Maunder] “What are you Coalies doing here, is your Christmas Party over?”
- Mr Bird: “You’re not a Prestrip Supervisor, fuck off”
- Mr Maunder: “Don’t fucking start”
- Mr Bird and Mr Maunder continued to argue.
- Mr Maunder then pushed Mr Drake and Mr Bird before attempting to grab Mr Bird.
- Mr Bird reportedly punched Mr Maunder in the face at least once.
- Mr Drake subsequently jumped over the top of Mr Bird and punched Mr Maunder at least once.
- The fight ended after Mr Clayton Gardner and Mr Robert Bigham intervened to break Mr Drake, Mr Maunder and Mr Bird apart.
- As a result of the fight, Mr Maunder suffered injuries to his forehead and nose.
Dismissal of Mr Drake upheld
The commission heard extensive evidence provided by the parties (refer Case law Link above) and found that the actions of Mr Drake were unacceptable in a work-related context.
Deputy President Asbury of the Fair Work Commission, said in her findings “I am satisfied and find that there was a valid reason for Mr Drake’s dismissal on the basis that he punched Mr Maunder in the head more than once and there were no extenuating circumstances to mitigate his conduct. Further, I am satisfied and find that this conduct occurred at a work event and was sufficiently connected to Mr Drake’s employment to constitute a valid reason for his dismissal.”
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Mr Bird to be re-instated
While the commission highlighted the evidence provided that “Mr Bird was far from an innocent bystander” and “engaged in a verbal altercation with Mr Maunder which turned physical when Mr Bird and Mr Maunder each took hold of the other’s shirt” It did find he was unjustly terminated and ordered reinstatement.
Deputy President Asbury found that the evidenced used by BHP in making a decision for termination was potentially flawed.
“The dismissal of Mr Bird was unjust because he was not guilty of the misconduct on which the employer acted. The dismissal was also unreasonable because it was decided to dismiss Mr Bird on misconduct grounds in circumstances where inferences were drawn about that misconduct which were not available on the material before the employer, including errors about what Mr Bird did and did not concede during the investigation process. In short, the dismissal was substantively unfair and the fact that it was carried out in a generally procedurally fair manner does not, in all of the circumstances, outweigh the fact that there was no valid reason for dismissal”Fair Work Commission, Deputy President Asbury,  FWC 7444 DECISION
BHP was subsequently ordered to reinstate Mr Bird to his previous position and seek to reach agreement on remuneration that would be paid to Mr Bird for the loss of earning for the period (adjusted for . it also provided an option for further hearing should an agreement not be reached).
The case highlights responsibilities for employees and employers at work Christmas parties
The recent decision sends a warning for both employers and employee in respect of work Christmas parties. It is fair to say that the line of work and home life can be easily crossed in the context of parties, particularly if they involve a workgroup.
Employers should make clear standards of behaviour expected at a work Christmas party and exercise their duty of care in respect of the event as if the event was conducted at a place of work. Employers should also make clear to employees what the potential outcomes may be should misconduct occur (including those of misuse of social media at the event).
Employers should consider issues of liability including:
- Bullying and harassment;
- Workplace violence;
- Discriminatory behaviour;
- Responsible service of alcohol;
- Safe Transport to and from the event.
Liabilities may still exist for journey related claims should an employee be injured on their way home from a work-related party, so defining safe transportation for employees should be considered as part of the risk assessment process for the event.
For employees, the lessons of Mr Drake and Mr Bird are self-explanatory. Employees should always consider that the work Christmas party:
- is a work function and will most likely be considered as being ‘at work’ in a legal case;
- that they must meet their health and safety obligations (as if they were at work);
Under all circumstances, an employee should always be mindful of the employer’s policy in respect of drunken behaviour, sexual harassment, violence and assault, indecent exposure, offensive language and any other activity that may degrade the reputation of the employer or the relationship between the employee and the employer.
Having fun while exercising some restraint at this year’s work Christmas party may keep both employers and employees out of harm’s way and out of the court.
Note: The information and case law discussed in the article is a summary only. For a full record of the Fair Work Commission findings in the Drake & Bird v BHP Coal Pty Ltd  FWC 7444 case, we suggest you review the case in entirety.
Before you go, you might also like to read the case involving a miner who loses a ‘beard at work‘ battle with mining giant BHP.
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