‘Sucking the boss’: Truck driver should not have been sacked for gross jab at colleague, tribunal finds

A truck driver was sacked for repeatedly making a sexually explicit jab at his co-worker — but may get his job back despite the “reprehensible” conduct.

A truck driver working on Christmas Island was sacked after repeatedly telling a co-worker he liked “sucking the boss’ d**k” — but may get his job back after a tribunal found he was unfairly dismissed despite the “reprehensible” conduct.

Ramlan Abdul Samad, 62, was sacked by Christmas Island Phosphates in June after his colleague made a harassment complaint.

Mr Samad, who had worked at the resources company on the remote Australian territory for two decades, began needling his colleague earlier this year about “sucking up to the boss”, “sucking the boss’ d**k” and that he “knew how to suck the boss” while imitating a person performing fellatio, and continued making similar comments despite being told to stop.

The victim eventually complained to Christmas Island Phosphates, which sacked Mr Samad after an investigation found he had breached several of its workplace policies.

He took his case to the Fair Work Commission in July, claiming he had been unfairly dismissed.

“I don’t know anything about the new policies the company say I breached,” he told the commission. “Then they sacked me. I don’t know why I should be dismissed.”

Christmas Island Phosphates trucks pass each other on the road to Phosphate Hill. Picture: John Pryke/AAP

Mr Samad said he was unaware explicit language was prohibited and claimed such banter was common in the workplace, which Christmas Island Phosphates denied.

Fair Work Commission deputy president Peter O’Keeffe challenged Mr Samad on some of his claims during the hearing.

“I suggested that it was difficult to accept that an employee needed a policy to tell him not to accuse other employees of sucking the boss’ d**k and that simple life experience should have provided this knowledge,” he said.

“It was conceded by the applicant that he did not need such a policy.”

But Mr O’Keeffe said he was not persuaded that Mr Samad’s actions constituted sexual harassment as they did not contain “any genuine sexual undertone”.

“I think what he was instead doing was using a common — but totally unacceptable — form of insult for people who are considered as being too close to their boss,” he said.

Mr Samad’s comments themselves “while reprehensible, would not have warranted termination”, but taken with his other behaviour — including “doubling down” and “victim blaming” by suggesting his colleague could not take a joke — constituted a valid reason for dismissal, Mr O’Keeffe found.

Phosphate mining is the remote island’s only major economic activity. Picture: John Pryke/AAP

However, in a narrow decision in Perth on Wednesday, the Fair Work Commission ruled in favour of Mr Samad.

“I have concluded that despite the valid reason for termination, the dismissal of the Applicant was nevertheless harsh and unjust,” Mr O’Keeffe said.

The ruling took into account Mr Samad’s limited employment prospects on Christmas Island, which is home to around 1800 people, and the apparent “tick and flick” approach by Christmas Island Phosphates which meant it was likely employees were not familiar with the relevant workplace policies.

“I suggested at the hearing and it remains my view that an employer cannot, and indeed does not need to, have a policy for everything,” he said.

“There are some behaviours that are so extreme that they do not need to be codified and any reasonable person would know not to engage in them. It might perhaps be hoped that this extends to other unwanted behaviours such as bullying and sexual harassment, but experience teaches that this is not the case.”

Mr O’Keeffe suggested that if Mr Samad had been offered a “culturally and linguistically appropriate interactive training course that dealt with not just the ‘what’ but also the ‘why’” he “may have changed his behaviour”.

“Given this, I believe that I must give some weight to my finding that the applicant’s lack of exposure to and understanding of the relevant policies may have been a contributory factor in his behaviour,” he said.

A case conference will be held at a later date to determine whether Mr Samad is awarded reinstatement or payment of compensation.