This unfair dismissal decision of the Fair Work Commission explores the employment law doctirnes of “out of hours conduct” and “proportionality.”
.“Out of hours conduct
[1] Mr Zheng submits that there was no valid reason for his dismissal as he did not breach CPMM’s Code of Conduct or ‘behavioural expectations’. Mr Zheng says that as the incident on Monday 16 September 2024 occurred outside of work hours and outside the workplace, CPMM’s Code of Conduct is not engaged. Mr Zheng also submits that CPMM never informed him of its ‘behavioural expectations’, and they have never been particularised.28
[2] CPMM makes the following submissions on the issue of whether Mr Zheng’s conduct occurred outside of work hours and outside the workplace:
(a) The lifts at 45 St Georges Terrace are part of the workplace. This is because the lifts are the only way for CPMM’s employees to get to work at CPMM’s Perth Office. Mr Zheng was in the lift as he was attending for work.
(b) Even if the lift was not part of CPMM’s workplace, Mr Zheng’s conduct has a sufficient connection with his employment.
[3] Both parties made references to the Full Bench decision in Sydney Trains v Andrew Bobrenitsky.29 In [116] to [139] of the decision in Bobrenitsky, the Full Bench traversed the history of relevant precedents on out of hours conduct in relation to the unfair dismissal
jurisdiction. The Full Bench then set out the principles in relation to out of hours conduct as a valid reason for dismissal as follows:
(a) In certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. These circumstances are limited. The conduct must be such that, viewed objectively, it is likely to cause serious damage to the employment relationship; the conduct damages the employer’s interests; or the conduct is of such gravity or importance as to indicate a rejection or repudiation of the employment contract.30
(b) To constitute a valid reason for dismissal, the out of hours conduct must touch the duties or the abilities of the employee in relation to the duties. This requires consideration of the entire factual matrix and questions such as: what was the nature of the out of hours conduct; where did it occur; the circumstances in which it occurred; the nature of employment; the roles and duties of the employee; the principal purpose of the employee’s employment; the nature of the employer’s business; express and implied terms of the employment contract; the effect of the conduct on the employer’s business; and the effect of the conduct on other employees.31
[4] The Full Bench also noted that there may be a connection between out of hours conduct and employment in the following circumstances:
(a) Where the out of hours conduct occurs in a facility or accommodation provided by the employer (or a third party in an arrangement with the employer) However, more may be required to establish relevant connection than the geographical location where the conduct occurs.32
(c) Where the conduct is directly inconsistent with the employer’s role, duties or obligations.33
(d) Where the employee is convicted of a crime outside of work and that person is employed in a role where they must perform the same duties in the same context in which the crime was committed.34
(e) Where the out of work conduct materially damages the employer’s interests in respect of its relationships with its clients and staff.35
(f) Where the out of hours conduct affects other employees or the efficient operation of the business.36
[5] As the Full Bench observed:37
The line that can be traced through the cases is that all the circumstances of the employment must be examined and that the express or implied terms of a contract of employment are relevant, but not determinative, to the connection between out of hours conduct and employment, where the conduct is relied on as a reason for dismissal. Absent a connection with employment of the requisite kind, out of hours conduct will not constitute a valid reason for dismissal.
[6] In this matter, I have considered Mr Zheng’s employment. This is inclusive of his role, his work location and his duties. What is of significance in this case is the conduct – being the unjustified behaviour towards Witness AB – and the time and location where it took place.
[7] As per the authorities in this area, pushing and swearing at another person does not automatically give rise to a valid reason for dismissal. However, in this matter, I do find that Mr Zheng’s actions give rise to a valid reason for dismissal for the following reasons:
(a) Location: The incident took place in the elevator of the building that CPMM’s Perth office is located in. It is the only way for CPMM employees to access the floors that CPMM uses. I find that the elevator is either part of the CPMM workplace or is sufficiently linked to the workplace due to its extremely close geographical and practical connection.
(b) Timing: This is not a case where the incident took place on a Saturday night, well outside of the employee’s usual hours of work. The incident took place approximately 15 minutes before Mr Zheng was due to commence work, at a time where many other office-based employees (including other CPMM employees) were attending work.
(c) Connection with CPMM: The incident was witnessed by Mr Chong, another CPMM employee. Mr Zheng was also easily identifiable as a CPMM employee as he was wearing a CPMM lanyard at the time.
(d) The nature of the incident: Mr Zheng forcefully pushed a stranger in the back and swore at her because she brushed past him when he was standing directly in front of the elevator door, after not moving at her request. It was a disproportionate and aggressive reaction that would not be acceptable if it took place inside the CPMM office space.
(e) The CPMM Code of Conduct: Clause 4 of the CPMM Code of Conduct states that (among other things) abusive language or any other anti-social interaction will not be tolerated under any circumstance.38 There was some contention between the parties regarding the application of the Code of Conduct and to what extent Mr Zheng understood it. To be frank, I think that is largely immaterial as a reasonable person does not need a formal piece of paper to say absent extenuating circumstances, you should not intentionally shove and swear at people in places or circumstances connected to your work.
[8] With the circumstances of Mr Zheng’s employment and the incident taken together, I find that Mr Zheng’s actions did damage CPMM’s interests. It is unsurprising that CPMM did not want an employee deliberately pushing other people in the building lifts while wearing a CPMM lanyard and in front of other CPMM employees.
Proportionality
[9] I am not persuaded by Mr Zheng’s submission that dismissal was a disproportionate response to his conduct.39 Mr Zheng effectively assaulted a stranger because he was aggrieved that she had brushed past him. This was a serious matter.
The investigation
[10] Mr Zheng submits that the investigation process was flawed for the following reasons:
(a) The investigation was conducted over the course of days and over a long weekend, which shows that CPMM took a fast-tracked approach in reaching the decision to terminate Mr Zheng.40
(b) CPMM failed to provide Mr Zheng with Witness AB’s statement regarding the Monday 16 September 2024 incident, or any other documents or information which were relevant to its decision to dismiss Mr Zheng.
[11] I do not find anything unusual in an investigation being conducted over a few days where there are a low number of witnesses (in this case, Mr Zheng and Mr Chong) to a short incident that was also captured by CCTV.
[12] Regarding Mr Zheng’s point regarding Witness AB’s statement, there was no statement from Witness AB, and she did not participate in the investigation beyond informing CPMM of the incident.
[13] Insofar as Mr Zheng raises issues with the investigation process into what occurred on Monday 16 September 2024, I find that they carry no weight. When Mr Lord wrote to Mr Zheng on Thursday 19 September 2024, he put Mr Zheng on notice of the allegation that he had pushed and sworn at someone as they attempted to exit the lift.41 Mr Zheng was given the opportunity to give his version of events before and after viewing the CCTV footage, in writing and orally.
[14] To the extent Mr Zheng makes any submissions regarding his English competency affecting his understanding of the process, I do not accept such an argument. From Mr Zheng’s email reply to Mr Lord on Thursday 19 September 2024, he understood what Mr Lord was asking him. If Mr Zheng did not understand Mr Lord during the investigation process, he did not lead any evidence to that effect. I find that Mr Zheng was given a fair opportunity to respond to the allegation.
[15] For the reasons outlined above, I find that there was a valid reason for Mr Zheng’s dismissal.
1.1 Section 387(b) and (c) – notification of valid reason and opportunity to respond
[16] An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss.42 Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.43
[17] It is clear on the evidence that after CPMM reached a view on what occurred on Monday 16 September 2024 and that it gave rise to a reason for termination, it did not give Mr Zheng the opportunity to respond to that reason. As per Mr Lord’s evidence, he met with Mr Zheng on Friday 20 September 2024 to view the CCTV footage and ask him questions. Mr Lord considered the material and reached the view that Mr Zheng had breached the CPMM Code of Conduct and then informed Mr Zheng of his dismissal on Tuesday 24 September 2024.
[18] I find that Mr Zheng was not notified of the reason for his dismissal prior to the decision to dismiss and was not given the opportunity to respond.
1.2 Section 387(d) – any unreasonable refusal to allow a support person
[19] Mr Zheng submits that he was not told he could have a support person for his discussion with Mr Lord on Thursday 19 September 2024 and he was not given sufficient notice that he could have a support person for his meeting with Mr Lord on Friday 20 September 2024.
[20] CPMM submits that Mr Zheng’s position is misconceived – the question is whether CPMM unreasonably refused Mr Zheng’s request for a support person.
[21] I agree with CPMM. Based on the evidence, Mr Zheng made no request for a support person. Mr Zheng was told he could bring a support person to the meeting on Friday 20 September 2024, which he did not take up. I find that this is a neutral consideration.
1.3 Section 387(e) – warnings concerning performance
[22] Mr Zheng was not terminated for poor performance. This is therefore a neutral consideration.
1.4 Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed
[23] CPMM is a large enterprise with approximately 1,300 employees and dedicated HR specialists. I find this is a neutral consideration.
1.5 Section 387(h) – any other matters the Commission considers relevant
[24] Mr Zheng raises the following matters which he says should be considered relevant: Difficulty in finding new employment
[25] CPMM did not consider the following factors when deciding to dismiss him:
(a) Mr Zheng’s injury at the time of his dismissal. Mr Zheng says that his injury means he cannot find alternative employment until he is fully recovered.
(b) Mr Zheng is 55 years old. This would make it difficult for him to find alternative employment in the same occupation.
(c) Mr Zheng has worked in power plants for over twenty years. This means his career experience is specific and niche. It would be difficult for him to find a similar role in Western Australia, especially one that pays the same as his role with CPMM.
[26] It is not unusual that a dismissal will adversely affect the dismissed employee. I do not find Mr Zheng’s submissions in this regard persuasive. I also note that Mr Zheng is still receiving workers’ compensation payments, which ameliorates Mr Zheng’s hardship until he can find a new job.
CPMM’s bias against men
[27] Mr Zheng effectively says that because his version of events was so credible, CPMM choosing to side with Witness AB shows that CPMM is biased against men.44 This submission rises no further than conspiracy or speculation. As I have outlined, Mr Zheng’s version of events was not credible. Mr Zheng’s contention that CPMM is biased against men was also unsupported by any material other than Mr Zheng’s grievance that CPMM did not find in his favour.
Witness AB’s credibility
[28] Mr Zheng says that Witness AB is motivated by revenge and/or spite; and that Witness AB did not report the incident to the police because ‘she knew that she was not of clean hands’.45 There was no evidence led at all to support these contentions. It is also not factually correct, as Witness AB did report the incident to the police.46
Dismissal was disproportionate
[29] Mr Zheng submits that his swearing at Witness AB was justified in the circumstances and did not warrant summary dismissal.47 Mr Zheng’s swearing cannot be separated from his deliberate push of Witness AB. I refer to my earlier findings regarding the proportionality of Mr Zheng’s dismissal.
Termination by phone
[30] Mr Zheng says CPMM’s decision to dismiss him over the phone was harsh and unreasonable and that he should have been afforded the basic dignity of an in-person meeting.48 Mr Lord’s evidence is that chose to inform Mr Zheng of his dismissal over the phone as he did not want to make Mr Zheng attend the office for a brief discussion.49 When taken together with the procedural deficiencies in Mr Zheng’s dismissal, I agree that this is a relevant factor.
Real reason for termination
[31] Mr Zheng contends that the real reason why he was dismissed was because he was a financial burden to CPMM.50 Putting to one side that the test is whether there was a valid reason for dismissal, not what was the real reason for termination, Mr Zheng’s contention was not borne out in Mr Lord’s evidence. Mr Lord gave evidence that to his knowledge CPMM had not hired anyone to fill in Mr Zheng’s role while he was on light duties,51 and that CPMM had overflow staffing, meaning that Mr Zheng’s role could be covered.52
1.6 Is the Commission satisfied that Mr Zheng’s dismissal was harsh, unjust or unreasonable?
[32] I have made findings in relation to each matter in s 387 as relevant to this case. I have found all factors except for s 387(a), (b) and (c) to be neutral in this matter.
[33] The procedural deficiencies in Mr Zheng’s dismissal are serious. However, in considering all the relevant facts in this matter, I find that the valid reason outweighs how Mr Zheng was dismissed. In reaching this conclusion, I have placed weight on Mr Zheng’s conduct; the impact it had on CPMM’s interests; and Mr Zheng’s complete lack of remorse for his actions. Even on the day of the hearing, Mr Zheng was still insisting that he was a victim of Witness AB and that there had been nothing wrong in how he had acted.
[34] Mr Zheng’s dismissal was not unfair. His application is dismissed.”
Zheng v Citic Pacific Mining Management Pty Ltd [2025] FWC 1471 delivered 28 May 2025 per Lim C