In a recent decision the Fair Work Commission found that a cleaning business unfairly dismissed a cleaner for allegedly skinny dipping at a mining camp party.
The Facts
The employee was employed as a cleaner on a mining site from 25 September 2024 until his dismissal on 26 November 2025. He was provided with accommodation at the site.
On 15 November 2025 he took part in a gathering at the pool deck at the mine site accommodation.
The gathering started at about 6.30pm and the employee consumed multiple alcoholic drinks.
Toward the end of the evening the employee entered the swimming pool with another person.
There were no site rules against drinking outside work hours at the facilities however there was a site rule to swim not naked.
On 18 November 2025 the employee was given a letter alleging that he jumped into the site pool while naked in front of guests and other employees and asking him to show cause as to why the company ought not take disciplinary action, up to and including termination of employment.
After the employee attended a show cause meeting, he was given a termination letter alleging that he committed a serious breach of the Company’s Code of Conduct, site rules and work behaviour policy, by entering the pool while intoxicated and naked, in view of guests and employees.
The Hearing
At the hearing the employer produced various statements with conflicting evidence about whether the employee was naked when he entered the pool. None of the witnesses attended the hearing.
The employee gave evidence that although he could not remember what occurred, he was told by a work colleague that he was earning underwear when he was in the pool. He also said that he woke up in wet boardshorts.
The Decision
The Commissioner upheld the employee’s application, finding that a firm conclusion could not be reached on the balance of probabilities that the naked swimming occurred, where:
- The employer’s witnesses did not attend the hearing, and so their evidence could not be tested, and
- The employee’s evidence was that he was wearing underpants in the pool.
The Commissioner limited compensation to 6 weeks, finding that although the employment would have continued for another six months, the employee had not taken reasonable steps to look for other work.
Implications
The case is a reminder to employers of the importance of carefully considering in a disciplinary process how to substantiate their reasons for dismissal in a dispute, including considering the availability of witnesses.
The case is also a reminder to employees of their responsibility to mitigate their loss by taking reasonable action to look for work after a dismissal has occurred.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.