Offensive jokes ok - lying to an investigator not

​The Fair Work Commission’s decision in Boyle v BHP Coal Pty Ltd is another example that it’s often not the crime that matters most, it’s the cover up.

On 2 November 2018, Mr Boyle and three colleagues were travelling together in a car at a mine site. At one point on the journey, Mr Boyle said words to the effect, “If my old girl has a headache, I crush up Panadol and rub it on my old fella and tell her she can have it orally or anally.”

A complaint was later made and BHP investigated what occurred.
​
During that investigation, Mr Boyle admitted making the statement – and repeated it several times to BHP’s investigators. He also said it was made in response to sexualised talk from the two women in the car.

Mr Boyle eventually apologised for his conduct, promised that it would not be repeated and offered to attend a mediation.

BHP decided to terminate Mr Boyle’s employment and he then made an unfair dismissal claim.

Commissioner Hunt rejected Mr Boyle’s claim – but not for the reasons you might expect. There are several interesting aspects of the decision.

A single joke will not normally be a valid reason for dismissal

The Commissioner found that Mr Boyle’s conduct in telling the “joke” was not a valid reason for his dismissal. She stated,

“A workplace devoid of some humour and the occasional joke is, I consider, to be a very sad, dull and oppressive workplace. For many employees spending approximately 38 hours per week at work, light-hearted bantering and the occasional joke will make their workplace, and for those within it, a better, more productive and fulfilling workplace.
I do not consider, in most circumstances, that an employee should lose their job on account of the telling of a single joke.”

A workplace investigator can’t be a “wilting flower”

Commissioner found there was nothing untoward in Mr Boyle repeating his comments to the two workplace investigators. She found that the evidence from the investigators that they were offended by the comments to be overstated.

Further, she stated,

“In my view, as an investigator of workplace conduct, it is an investigator’s role to be able to hear everything that is put without personally taking offence with what is said during the investigation. An investigator should be strong and impartial, not prone to being a wilting flower upon hearing difficult or potentially offensive matters during an investigation. If they are easily offended, they should not be in the role of investigator.”

Follow your internal processes

Commissioner Hunt was critical of BHP’s failure to follow its internal processes during the investigation (though her comments may need to be considered in the context of the Full Bench decision in BHP v Odgers).

She stated:

“In my view, the Respondent expects its employees to abide by the Respondent’s numerous policies, but its own senior management have a complete lack of knowledge as to the application of the Fair Play Guidelines, a policy of the Respondent’s creation. The hypocrisy is astounding and unacceptable. It is not even a terribly complex issue to address. Simply, all sites where the Fair Play Guidelines are stated to apply by virtue of it being within the site’s enterprise agreement, or by statement of scope and application within the Fair Play Guidelines, should promulgate its existence at those sites and train the relevant personnel. It is my observation that in a number of unfair dismissal matters that have come before me on this issue with the same Respondent or associated entity, there is ignorance as to the application of the Fair Play Guidelines. There has been no satisfactory explanation provided to me as to why the Respondent and its associated entities are not able to properly address this issue.”

Commissioner Hunt concluded that the investigator had failed to follow the appropriate process, and that this had infected the ultimate decision to dismiss Mr Boyle.

Conduct during an investigation

Commissioner Hunt was highly critical of Mr Boyle’s attempt to put his comment into context by claiming to the investigators that it was said in response to his two female colleagues, Ms Ramirez and Ms Barden, talking about “rooting”.

Commissioner Hunt stated,

“I do find, however, that Mr Boyle’s assertions relevant to the context of the conversation were false, and made by him in an effort to substantiate why he made the joke. Throughout all of the investigation period he maintained the line that Ms Barden and Ms Ramirez had been engaging in sexualised talk. On the evidence before the Commission, I do not accept this to be true, and I consider that Mr Boyle falsely led the Respondent on a wild goose chase in an attempt to downplay his misconduct.”

Commissioner Hunt held that,

“Even though it was not the reason provided by the Respondent as a reason for the dismissal, I find that Mr Boyle’s false assertions against Ms Barden and Ms Ramirez constitutes a valid reason for the dismissal.
…
Mr Boyle was, in my view, prepared to take Ms Barden and Ms Ramirez with him ‘under the bus’. He ought to have known that his repeated assertions against them would cause the investigation to be extended, allowing for further statements to be made. As I have stated above, the slur on the women that they were discussing sexual matters when they were not, is completely unfair. It is abhorrent that Mr Boyle would make such false assertions against the two women.”

The Commissioner found that, in all the circumstances, Mr Boyle had not been unfairly dismissed.