The Fair Work Commission (FWC) has ordered that a BHP subsidiary pay compensation to a fly-in, fly-out mineworker it sacked for playing a sex toy prank and partly exposing her breasts in a workplace selfie.

While the FWC found that the employee had engaged in misconduct warranting her dismissal, the employer’s failure to strictly adhere to its own procedures made the dismissal unfair.

Employee was ‘foolish’

The employee had placed a sex toy along with butterknives into a male colleague’s hand luggage before taking a flight home. When airport security retrieved the items, she filmed it on her phone.

Months after, while this incident was being investigated, the employee then appeared in a photo with two other female colleagues. Each had unbuttoned their uniform tops down to the last two buttons and provocatively bared the tops of their breasts while bending forward.

The employee who played the sex toy prank was summarily dismissed.

In the unfair dismissal hearing, the employee argued that her dismissal was “extremely disproportionate” and that the employer had inconsistently applied its disciplinary policy, as the other employees in the photo were not dismissed.

She also maintained that the photo taken was “not inappropriate” as “it was just cleavage” and “not actually showing breast”.

But FWC Commissioner Jennifer Hunt found that the employer did have a valid reason to dismiss the employee, as she had breached the company’s values of respect and integrity.

She however thought that appropriate disciplinary action for the selfie incident alone would be a first and final written warning as the women “did keep their bras on while posing for the photo”.

Nevertheless, Commissioner Hunt found that the dismissed employee’s misconduct was unacceptable “in no uncertain terms”, noting that she participated in the photo “without any regard for how precarious her employment might be”.

“Her foolishness in being involved in both incidents is demonstrated by her evidence before the Commission that she did not regard the photo as inappropriate,” Commissioner Hunt said.

‘Haphazard’ dismissal

Commissioner Hunt said she was “deeply troubled” by the employer’s “haphazard” approach to dismissing the employee.

“Of incredible concern to me is the abject failure of [the employer], through [the superintendent], to adhere to its obligations to follow the BMA Guideline to Fair Play policy (Fair Play Guidelines),” she said.

“Most concerning was … when it was suggested by [the employer’s legal counsel] that [the employer] is not obligated to follow the Fair Play Guidelines.

The counsel argued that the guidelines were just “an internal reference tool for managers to help guide their decision-making” and did not have to be completed in every case.

However, Commissioner Hunt found the employer was obligated to follow these guidelines under the company’s Enterprise Bargaining Agreement, which had been relied on in other FWC cases.

“The Fair Play Guidelines are a requirement to follow; they are not just something that can be completed whenever a manager decides he or she will do so,” she said.

Employer had ‘no regard to obligations’

Commissioner Hunt said that although the employer had a valid reason to dismiss the employee, it had “no regard at all to its obligations” in applying the Fair Play Guidelines, which made the dismissal unfair.

While Commissioner Hunt believed that reinstating the employee would be inappropriate because of a loss of trust and confidence, she ordered the employer to pay the employee $6,550 in compensation (10 weeks’ wages reduced by 50% for misconduct).