A mining camp cleaner who was sacked for allegedly swimming naked during a late-night work party has won an unfair dismissal case, with the Fair Work Commission awarding him nearly $10,000. Lester Box, a former remote hospitality employee, claimed he was fired because of his sexual orientation, but the commission dismissed that allegation.
Background of the Incident
The Fair Work Commission heard that Box was employed by catering and hospitality company Sirrom and was staying at the Centurion Accommodation Village, about 20 minutes from a Peabody-operated coal mine in central Queensland. On the night in question, Box consumed approximately eight or nine alcoholic drinks with colleagues and his supervisor before he and a male guest jumped into the pool just after 10pm. The gathering was described as a Christmas celebration.
It was alleged that Box and the other man jumped in naked after being encouraged by other male employees. However, Box stated he could not remember if he entered the pool without clothes, but claimed he woke up wearing a pair of quick-dry board shorts.
Dismissal and Investigation
Sirrom terminated Box's employment without notice, citing that the skinny dip was inappropriate, unsafe, and inconsistent with expected standards. The termination letter stated that Box entered the site pool naked in the presence of employees and consumed alcohol after the approved 10pm curfew. The company had initially stood Box down while conducting an internal investigation.
Sirrom claimed several witnesses, including Box's supervisor, had independently identified him as being naked in the pool. One employee alleged in an email that other men had encouraged Box to strip off, but she did not visually confirm the nudity because she personally did not wish to see that. The witness also claimed Box remained in the pool for an extended period on an inflatable air mattress.
The commission heard that the mining camp did not prohibit alcohol consumption after 10pm, but swimming naked was banned. Four workers claimed they witnessed Box jump in without clothes, but none appeared to give evidence during the Fair Work Commission determinative conference on April 2. Only one provided an official statement alleging the skinny dip.
Commission's Findings
Commissioner Alana Matheson ruled in favor of Box because Sirrom failed to bring any of its witnesses to testify. She stated that the poor evidentiary case did not support a finding that he was naked in the pool. In these circumstances, she was unable to reach a firm conclusion on the balance of probabilities that the alleged conduct occurred.
Box disputed the nudity claim and argued that Sirrom targeted him because of his sexual orientation. However, Commissioner Matheson dismissed that claim, stating that the commission did not establish that the applicant was targeted due to sexual orientation.
Box also claimed another employee told him he had been in the pool in his underwear. However, Commissioner Matheson did not find Box a credible witness because he could remember some parts of the night but forgot other details. She highlighted that Box's supervisor declined to provide a written statement because she felt some blame for the incident, as she arranged the party.
The commissioner also questioned how the employee who claimed she could see Box lying on an inflatable mattress in the pool could not tell if he was wearing clothes. She found it difficult to understand how the witness could observe Box for an extended period but not see whether he was naked.
Compensation Award
Commissioner Matheson found there was no valid reason for dismissal and ordered Sirrom to pay Box $9,543 in compensation. She placed more weight on Box's claim that he woke up wearing board shorts. The commissioner noted that Box had not tried to look for work because he wanted to wait for the outcome of his application and remained unemployed. She considered this warranted a substantial reduction in the compensation that might otherwise be ordered. The amount does not include a component for shock, distress, humiliation, or other analogous hurt.
