Taking a page from every dad’s playbook on justifying his son’s moronic behaviour, in a recent unfair dismissal case, a sacked mineworker pulled out the “boys will be boys” defence. Genius! Not so much.
While the mineworker was enjoying a few beers after a hard day’s work, a glass bottle, thrown by a co-worker, smashed at his feet. The mineworker did not take too kindly to the gesture and thought it best resolved by holding one of the shards of glass to the bottle thrower’s throat and saying “If you did that in Perth I’d cut your tongue out”.
When the mineworker realised that the co-worker’s neck was bleeding, he let him go, asked the co-worker if he was ok, and then sat down to finish his drink (you don’t want to know what they do to you in Perth if you leave a beer unfinished).
After finding out about the incident, the employer, Fortescue Metals, sacked the mineworker. The mineworker brought an unfair dismissal arguing that his behaviour, which may be considered as violent elsewhere, was just “boys being boys” on a mine site. Fittingly, like squabbling boys, the mineworker also complained that the co-worker “started it”, so his glass wielding, tongue amputating threats weren’t his fault.
The defence didn’t fly. The Fair Work Commission upheld the dismissal, finding that the mineworker’s conduct would be unacceptable anywhere.
While the FWC got it right, before dismissing an employee for misconduct or poor performance, employers must still have regard to the broader circumstances and not focus only on the offending behaviour. As you may recall from our porn lovin’ postie friends (here), background circumstances, including workplace culture, can result in a dismissal being found to be unfair despite the existence of what otherwise appears to be clear termination-worthy conduct.