By Jeff Salton

An automotive spray painter was sacked after spaying a co-worker in an act his employer described as ‘horseplay’.

In Graham v Walker Australia Pty Ltd t/a Tenneco (2017), the Court was told that Tenneco employed Mr Graham as a paintline operator where his duties were to paint vehicle exhaust systems with a paint gun, in a specially designed spray paint booth.

On 11 May 2017, Mr Graham entered the spray paint booth and adjusted the settings of the paint gun. He then tested the paint gun, spraying it into the open air of the factory and, in so doing, sprayed a co-worker on the neck and back. The co-worker lodged a complaint.

Following an investigation, Tenneco found that Mr Graham had engaged in ‘horseplay’, intentionally striking his co-worker with paint from the paint gun. Tenneco summarily dismissed Mr Graham.

Mr Graham commenced unfair dismissal proceedings against Tenneco, claiming the dismissal was harsh, unjust and unreasonable, given the incident was an accident and given his tenure of more than 18 years.

The verdict

The Fair Work Commission (FWC) agreed that Mr Graham’s conduct constituted serious and wilful misconduct, justifying the summary dismissal. The FWC rejected Mr Graham’s argument that the incident was an accident on a number of points:

• immediately after the co-worker was struck, Mr Graham was witnessed to be furiously re-adjusting the settings on the paint gun, appearing to cover up the incident;
• there were a number of safe alternatives for testing the paint gun, which Mr Graham could have used, for example, he could have sprayed it in another direction away from colleagues; and
• having 18 years’ service and 8 years in the paintline operator role, Mr Graham
  knew better.

The FWC held it was unnecessary for them to determine if Mr Graham had deliberately fired the paint gun at his colleague. Given the hazard and associated risks, Mr Graham was “reckless and indifferent to the safety and wellbeing of employees around him, whether or not it was horseplay”.

Lessons for employers

Just like employers, workers have duties under health and safety legislation to ensure they do not act in a manner that puts the health and safety of their colleagues at risk.

Where an employee acts with reckless indifference to these obligations, irrespective of whether the employee intended to engage in such conduct, the employee commits an act of serious misconduct warranting summary dismissal.