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‘Boys being boys’ defence rejected by FWC

The Fair Work Commission has rejected an employee’s application for an extension of time to lodge his unfair dismissal application in a case involving the employee holding a broken bottle to a colleague’s throat.

In considering the merits of the employee’s application, the FWC heard that the employee was drinking with a group of colleagues. When he left the table where they were sitting, a glass bottle was thrown and smashed at his feet.  The employee asked who had thrown the bottle aggressively and, when one of his colleagues admitted to it, the employee held part of the smashed bottle to the colleague’s neck and said “do you know what I do to people who throw bottles at me in Perth? If you did that in Perth, I’d cut your tongue out!”

The employee held the bottle shard so close to the colleague’s neck that it started to bleed. When he saw the blood, the employee asked his colleague whether he was alright, to which he replied he was.  That ended the confrontation.  The employee was subsequently dismissed by his employer when it became aware of the incident.

The employee argued that his dismissal was unfair because his colleague who threw the bottle was only provided with a warning, yet he was dismissed. He also said his language was not unusual for a mine site and ‘… what was acceptable on a mine site is different to a normal job. What would be considered violence in mainstream society is just ‘boys being boys’ on a mine site’.

Deputy President Gooley held that she did not accept the ‘boys being boys’ argument. She stated that the conduct was ‘unacceptable anywhere’ and held that the merits of the case weighed against her granting an extension of time.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.