A Melbourne man who punched a colleague and told him his swearing about other work colleagues was “gay” after a work Christmas party has failed to regain his job after the workplace umpire ruled his sacking was valid.
The Fair Work Commission found on Monday that the building maintenance officer, who had worked for the Arts Centre Melbourne since January 2020, struck a colleague – the head of venue planning – at a pub after the Christmas party in 2024.
While employers generally have limited right to control employees’ behaviour outside work hours, Monday’s decision shows how work policies can still apply when the conduct is serious enough or poses work health and safety risks.
The Arts Centre Melbourne is the country’s biggest performing arts centre known for hosting regular performances from Opera Australia, the Australian Ballet and the Melbourne Symphony Orchestra among others.
After the centre’s Christmas party ended at 7pm in December 2024, some of its employees walked to Beer DeLuxe, a venue in Flinders Street.
While standing together in a smoking area at the pub, the officer alleged the venue planner, who he had not met before, was being abusive about other employees, referring to them as “c—s”, which the officer found obnoxious “as a practising Christian”.
The officer said he tried to leave the conversation, but that as he was walking away, his colleague followed him and called him a “weak f—ing c—“, making him feel “very unsafe”.
The commission noted there was conflicting evidence about whether the venue planner had indeed called the officer a “weak f—ing c—” and that there was insufficient evidence that he had “physically pursued” the officer.
The officer said he pushed the man away, labelling this action as a “clumsy push” or a “shove”. However, commissioner Mark Perica said regardless of how it was described, the blow was “clearly an assault” that caused the man to stumble several metres and fall over a gas heater, risking the venue planner’s safety.
The officer later admitted that he had also said “well, that’s gay” in response to the venue planner repeatedly saying the word “c—”.
Perica, who presided over the case, said the officer’s stated reasons for not mentioning this fact earlier – including that he was “unsure it was something he could discuss” and that “there are issues because of his faith” – did himself no credit.
The venue planner said his memory of specific events was “hazy” because of his ADHD and alcohol consumption, but that he could “broadly remember” what had happened, including the officer referring to something – although he couldn’t recall what – in a derogatory manner, as “gay”, which he found offensive as a gay man.
Perica accepted the officer’s allegation that the venue planner had, in response to the statement, “gone off his head” and reacted with verbal aggression, but concluded this did not justify the officer striking him and causing an “obvious and imminent risk of injury”.
Perica rejected the officer’s claim that he had acted in self-defence and said that being offended on the basis of faith was not enough to justify a physical reaction.
Dismissal was an “entirely proportional” consequence, the commissioner said. And while the venue planner should have been warned for his disrespectful communication, the commissioner said that conduct did not warrant the same consequences.
The only direct witness was a senior manager at ACM who said what he saw was “a sloppy, big right-hand punch … a classic pub punch” delivered by the officer. CCTV footage from the event was lost by the venue, but a manager at Beer DeLuxe gave a general description of the video that showed the altercation.
Workplace lawyer Caroline Mense, of Legal Enablers, said the case showed serious misconduct linked to a work function did not necessarily end with the event itself.
“The connection to employment can continue well beyond the venue and the scheduled event finish time,” she said.
The officer also attempted to argue his dismissal was harsh because it happened the week before Christmas. The commissioner said that while this timing could be harsh “in some circumstances”, the harshness of this fact was “of minimal weight” in this case.
Ultimately, Perica said the officer had failed to comply with ACM and Victorian Public Service policies requiring him to treat co-workers with respect, even beyond the workplace. “It is not possible to show a person respect in the process of striking them to the head,” he said.
The Arts Centre declined to comment.
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Millie Muroi is the economics writer at The Sydney Morning Herald and The Age covering workplace and economics. She was formerly an economics correspondent based in Canberra’s Press Gallery and the banking writer based in Sydney.Connect via X or email.From our partners
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