Worker who ‘joked’ colleague was ‘sucking the boss’ was unfairly dismissed 

After two mediations between an employer and employee, additional written submissions on the subject of a remedy were filed to the Fair Work Commission, which was able to draw the peculiar case to a conclusion.

Beginning his employment at Phosphate Resources T/A Christmas Island Phosphates as a truck driver back in 2004, Ramlan Abdul Samad was a long-time employee with the organisation until his dismissal in June 2024.

His dismissal came after it was alleged that Samad began to make inappropriate comments to his co-worker. Samad made the claim that his co-worker knew how to “suck the boss” while imitating a person performing fellatio, a gesture that the co-worker originally ignored, although, in his evidence, the co-worker stated that the behaviour was, in fact, repeated.

On 24 May 2024, Samad similarly made a comment about “sucking the boss”, to which the co-worker asked him to stop the behaviour, or he would make a complaint. Following on from this, it’s alleged that Samad made repeated comments to other employees within the co-worker’s vicinity about not being able to joke.

This continued saga came to a head in June 2024, when Samad made comments that the co-worker made harassment complaints. The co-worker, fed up with the behaviour, challenged Samad, which resulted in an altercation where Samad allegedly showed aggression towards his co-worker.

After the altercation, word of Samad’s behaviour was reported to management, which began an investigation. The outcome of the investigation found that Samad had engaged in behaviour that they regarded as being in breach of several of its policies and dismissed him from his employment.

After his dismissal, Samad filed an unfair dismissal application with the Fair Work Commission, which was overseen by deputy president Peter O’Keeffe.

In his evidence, Samad conceded that he did indeed engage in some of the alleged behaviours; however, he denied the repetitive nature of the comments and alluded to them being “workplace banter”. He also conceded to being angry during the altercation.

He said in his rebuttal that he was unaware of the policies that the organisation claimed he was in breach of that led to his dismissal.

“I don’t know anything about the new policies the company say I breached. Then they sacked me. I don’t know why I should be dismissed,” said Samad.

He further explained that he never received counselling or warnings that the type of conduct in which he had engaged was considered a breach of policy.

The co-worker stands by his allegations, clarifying that Samad began his comments, saying he was “sucking the boss’s dick” and accompanying hand gestures, when he returned from his holiday. In terms of the altercation, the co-worker stated that he told Samad to refrain from making comments about him, whereupon Samad became very angry and threatened to hit him.

When it came to O’Keeffe’s decision, he clarified that he believes Samad’s behaviour is best characterised as bullying. Aligned with this, according to the organisation’s people and culture manager, Samad showed a lack of remorse for his actions.

O’Keeffe also explained that Samad’s explanation of not being aware of the policies he breached that caused his dismissal was not a plausible excuse.

“I suggested that it was difficult to accept that an employee needed a policy to tell him not to accuse other employees of sucking the boss’s dick and that simple life experience should have provided this knowledge. It was conceded by the applicant that he did not need such a policy,” said O’Keeffe.

Despite all of this, and O’Keeffe’s finding that Samad’s comments are reprehensible and thus fitting for termination of employment, “his age and employment prospects lean towards a finding that the dismissal was harsh in the circumstances.”

“Additionally, there is the issue of the applicant’s lack of exposure to and understanding of the policies cited in his termination documentation. I believe this adds an element of injustice to the termination,” O’Keeffe said.

Therefore, O’Keeffe found that “despite the valid reason for termination, the dismissal of [Samad] was nevertheless harsh and unjust”.

Remedy

Upon this conclusion, O’Keeffe conducted two conferences between the parties to determine if they could agree on a remedy; however, this did not prevail.

O’Keeffe then decided to invite them to make additional written submissions on the subject of a remedy.

For the remedy, Samad requested reinstatement, which was declined by the organisation, citing that reinstatement would “undermine its system of complaint and punishment and act as a barrier to future complaints by employees”.

There was also concern that the bullying of the affected co-worker would continue upon Samad’s reinstatement, to which the co-worker had reportedly shared concern.

Samad explained that “the lack of employment opportunities on Christmas Island, the applicant’s age – being 62 – and his long service without any recorded prior incidents of [negative] behaviour” were just reasons for his reinstatement.

Despite his reasoning, O’Keeffe concluded that reinstatement was not appropriate, as Samad’s arguments failed to outweigh the concerns about the impact that his reinstatement would have.

In terms of compensation for his dismissal, however, O’Keeffe was far more willing to explore the merits of his case.

After detailed deliberation, Samad’s compensation was residing at $99,327.71; however, if an applicant’s misconduct contributed to their dismissal, the FWC must reduce the amount it would otherwise order by an appropriate amount. Therefore, a significant deduction was made, reducing the compensation figure by two-thirds to $33,076.13.

The employer, Phosphate Resources T/A Christmas Island Phosphates, had to compensate Samad $33,076.13 within 14 days of the date of the order by way of remedy.