A worker's "torrid" abuse of a colleague at a conference constituted "repeated and unreasonable behaviour", within the meaning of bullying, even though it lasted little more than 20 minutes, the Fair Work Commission has found.
The FWC found the worker breached his employer's harassment and bullying policy, and rejected his unfair dismissal claim.
The Wesfarmers Kleenheat Gas Pty Ltd worker was sacked after a colleague complained he threatened and abused him at a hotel bar during the company's national sales conference in September 2014.
The colleague claimed that over a period of 15 to 20 minutes the worker told him to "fuck off and die", to kill himself and that "every time I see you I just want to punch you in the face".
He said he left the bar for 20 minutes and when he returned, the worker continued to verbally abuse him.
An investigation found the incident occurred, and that the worker also punched someone at the national sales conference in May 2005.
The worker claimed unfair dismissal, arguing the colleague exaggerated the incident, that he "probably" told the colleague to "fuck off" because he provoked him, and that he couldn't recall the 2005 incident, but if it occurred it would have been "horseplay".
In Perth, FW Commissioner Danny Cloghan heard that similarly to s789FD of the Fair Work Act, the employer's harassment and bullying policy defined bullying as "repeated and unreasonable behaviour, towards a person or persons that creates a risk to health and safety, whether verbal, physical or otherwise in the course of their employment".
He also heard that the employer's Code of Conduct required workers to avoid bullying, harassment and other inappropriate workplace behaviour, including in circumstances outside the workplace and working hours, such as the conference.
"While [the worker's] behaviour was over one evening, I am satisfied on the evidence, that it was repeated, humiliating, offensive and degrading towards [the colleague]. For that reason, I find [his] conduct was contrary to the employer's harassment and bullying policy," he said.
Commissioner Cloghan also found the worker did punch someone in 2005 and it wasn't horseplay, but said that as the victim didn't report the matter, he was "reluctant to endorse the employer's approach of including this incident as a reason for [the worker's] dismissal".
But he found the 2014 incident created a valid reason for dismissal, and rejected the worker's claim that the employer's "culture of heavy drinking" was to blame for the incident.
"Even if the employer had taken a more responsible approach to the serving of alcohol on the evening, in my view, the striking feature of the evening was not its histrionics, but the vehement, forceful, threatening behaviour of [the worker] towards [the colleague], for no other reason than he does not like him," he said.
"[He] deliberately, without provocation, engaged in 15 to 20 minutes of swearing, demeaning and torrid abuse of a work colleague."
O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWC 7011 (14 October 2015)
