Boys will be boys defence rejected in unfair dismissal WA case

The Fair Work Commission has rejected an application for an extension of time to make an application for an unfair dismissal remedy by a FMG mine worker who held a broken glass at the throat of a colleague. The applicant had been drinking off duty with colleagues, one of whom admitted throwing a glass at the ground where he had been sitting and who the applicant asked “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.”
Deputy President Gooley summarized the employee’s case thus “Mr Rouse did not consider the language he used was not (sic) unusual for a mine site. He did not consider what he said to the worker was threatening and he said he did not hold the bottle in a threatening way. Mr Rouse said his language was a statement of fact; it was not intended as a threat. Mr Rouse considered his dismissal was unfair because the other worker only received a warning for throwing the bottle and but for his conduct the incident would not have occurred. He said his response was a proportional response to the other worker’s conduct. He said he did not intend to hurt the other worker but to impress on him that he would not stand for acts of aggression directed at him. Mr Rouse said that 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.”
However she was unimpressed with the argument saying “I do not accept Mr Rouse’s “things are different on a mining site” defence. This conduct is unacceptable anywhere. I do not accept that the other worker caused Mr Rouse to behave in the way he did. Mr Rouse had other options but he did not use them. Mr Rouse could have made his feelings about the incident clear without making threatening statements whilst holding a piece of glass to the other worker’s neck”.
Adam Rouse v Pilbara Mining Alliance Pty Ltd T/A Fortescue Metals Group [2015] FWC 2814 delivered 24 April 2014