Two men, one fight, two outcomes

The related decisions in Chambers v Toll Transport Pty Ltd and Newton v Toll Transport Pty Ltd are useful examples of where it will be appropriate to investigate conduct that occurs outside the workplace.

Mr Chambers and Mr Newton were both truck drivers employed by Toll and were both TWU delegates.

In mid 2019, they travelled separately to Melbourne to attend two days of TWU meetings. They were both on paid “delegates’ leave” for the two days and Toll arranged their transport and accommodation for the trip.

After the first day of meetings ended, Mr Chambers and Mr Newton both went to a hotel with other Toll TWU delegates. However, this was not part of a formal function organised by Toll or TWU.

At around 10.30pm, Mr Chambers and Mr Newton had a fight outside the hotel. Mr Chambers was the clear winner of the fight. Mr Newton was quite badly injured. There were no witnesses to the fight.

Police attended the hotel but did not take any action against either party.

Toll also decided to investigate the fight.

Mr Chambers and Mr Newton provided radically different accounts of the fight to Toll and then in their evidence to the Commission.

On Mr Chambers’ version of events, Mr Newton was the aggressor and Mr Chambers had been forced to act in self-defence.

On Mr Newton’s version of events, he was king-hit and glassed by Mr Chambers.

After the investigation, Toll decided to dismiss both Mr Chambers and Mr Newton for fighting.

Both Mr Chambers and Mr Newton then brought unfair dismissal claims in the Commission.

A central argument made by both men was that there was no valid reason for the dismissals as the fight occurred outside work and there was no relevant nexus with their employment.

The Commission found in favour of both men on that point. Deputy President Boyce found there “was no evidence … that sufficiently tethers the circumstances” to the men’s employment – the fight occurred while the men were on paid leave, away from the workplace and after they attended meetings organised by TWU (not Toll).

This resulted in the Commission finding in favour of Mr Chambers in relation to his claim.

However, the Mr Newton’s claim was assessed differently.

Critically, Deputy President Boyce did not accept Mr Newton’s version of events. He found the evidence given by Mr Newton to the Toll investigator and to the Commission was false.

He was particularly scathing of the claims made by Mr Newton that he had been king-hit and glassed. He described these allegations as,

“sinister conduct that can never be justified. I infer that a core purpose for Mr Newton in making such false assertions against Mr Chambers was not only to attempt to save his job by impugning and damaging the character and reputation of Mr Chambers with Toll, and within the Toll workforce, but to also suggest to other colleagues that whilst Mr Newton had “lost” the Fight, it was never a “fair” fight to begin with.”

Deputy President Boyce found that – although the fight was not connected to either man’s employment – it was nevertheless reasonable for Toll to investigate what happened. He observed,

“in the facts and circumstances of this case, it would be wrong of Toll to have simply ignored or cast aside the conduct of Mr Newton and Mr Chambers simply because such interactions did not take place at work. In many cases, interactions between employees outside of the workplace require careful management back at the workplace, so as to eliminate potential future risk and/or liability. At the very least, Toll needed to inquire as to what had happened in relation to the Fight and the Verbal Altercation, and whether any issues arising from same would flow back into the workplace (and thus need to be managed).”

He continued,

“whilst an employee may engage in conduct or behaviour that does not occur at work, or does not have a requisite connection with work, if such matters are investigated by their employer, such an investigation will occur at work. It equally follows that any answers provided by an employee to questions put to him or her by their employer during such an investigation fall within the scope of the employment relationship. And in so falling within the scope of the employment relationship in this case, Mr Newton had a duty to answer questions and/or give his version of events honestly.”

Accordingly, the Commission fount that Mr Newton’s dishonesty during the investigation did provide a valid reason for his dismissal – albeit that this was not the reason provided by Toll at the time of the dismissal.
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The decision highlights that courts and tribunals will give employers some latitude in investigating conduct that occurs outside work. It also shows that employees are required to answer any questions put to them in such investigations honestly and that they may suffer employment consequences if they do not.