Sex toy, butter knives and airport security was ‘horseplay’
A CAVAL Ridge mine worker sacked for stashing a sex toy in a work mate's carry-on luggage and exposing her breasts in a provocative selfie onsite has won her unfair dismissal claim.
Fair Work Commission found BHP subsidiary Central Queensland Services failed to follow its own disciplinary procedure and ordered the company to pay Tara Odgers $6550 compensation.
The truck driver, who had been with the company for five years, had secretly slipped butter knives and the sex toy into her colleague's luggage as a prank and filmed him as he went through security at Moranbah airport in October last year.
The 49 year old claimed this was in retaliation to "some horseplay" onsite months earlier when the same colleague, who is also her housemate, had put pizza on the roof of Ms Odger's room at camp.
The x-ray machine flagged the bag and a security attendant pulled out various items including the knives and sex toy, which were placed on the counter for all to see. Ms Odgers was also ordered to hand over her phone so the footage could be deleted.
She admitted to buying the sex toy in Cairns specifically for the prank and when asked if it might be considered an offensive object she said: "Well, most people have one". She took the knives from her worksite without permission.
Then in March this year, two days after learning her employer was investigating the airport incident, Ms Odgers, wearing a BHP pink breast cancer work shirt, posed in a photo with two female co-workers exposing their breasts in bras in the meal room.
The photo was posted on Facebook, but later taken down. In the image Ms Odgers stood on a table with her shirt unbuttoned to the last two buttons provocatively baring the top of her breasts while bending forward.
She told the commission the photo was not inappropriate and could not be considered offensive as "it was just cleavage" and "it's not actually showing breast".
Ms Odgers was stood down on full pay on March 13 and terminated on March 26, but she fought the dismissal hitting out at what she claimed was BHP's inconsistent disciplinary action.
She argued it was "embarrassing" that she was dismissed and not her co-workers - one of whom was quoted in a Cairns Post article saying "it is a sausage fest out there" at Caval Ridge Mine, which Ms Odgers took to mean people on site were sleeping with each other in a "free-for-all".
Ms Odgers said her co-worker "only ever received a warning" labelling it differential treatment.
"Per the reasons supplied in my own termination of employment letter from BHP, (she) should have lost her position also," she said, but conceded she knew her co-worker was investigated and did not know what was said during any of those conversations.
Ms Odgers claimed there was no valid reason for her being sacked, but her employer argued the airport and photograph incidents were misconduct and constituted a valid reason for dismissal.
She was seeking her job back, but BHP argued this would be inappropriate because it had "lost trust and confidence in Ms Odger's ability to appropriately conduct herself".
Fair Work Commissioner Jennifer Hunt described the airport incident as "serious" that potentially put her co-worker at risk of breaching Australian aviation and security laws by having the knives go through the security screening without his knowledge.
"Given her age, there is no rational explanation for her immaturity relevant to the two incidents," Commissioner Hunt said.
"In no uncertain terms, Ms Odgers' misconduct was unacceptable."
She also labelled Ms Odger's characterisation of the term sausage fest as meaning "that men are largely promiscuous onsite is far off track" and found the woman had fabricated evidence.
"However, I am deeply troubled by (BHP's) failure to meet its lawful obligation to comply with the enterprise agreement it has entered into," Commissioner Hunt said.
She found the dismissal was unfair but did not consider it appropriate to reinstate Ms Odgers in her former position. Instead she ordered BHP pay compensation.