The Fair Work Commission has awarded $10,000 compensation to a sacked mine site cleaner who said he had been too drunk to remember skinny-dipping after being “egged on” by colleagues at a Christmas party in their accommodation village.

The employer’s case was poorly run at the Tribunal and this led to the employee succeeding.

Remote catering and hospitality services provider Sirrom Co. Pty Limited dismissed the cleaner after substantiating allegations that he and a male mineworker jumped into the pool at its accommodation village while naked, in front of guests and employees.

As well as breaching a specific prohibition on nude swimming at the site, the employer found he kept drinking alcohol in the pool area after its 10pm curfew. The cleaner told the employer he jumped in after being “egged on” by mineworkers at the party.

But after drinking about eight or nine alcohol beverages, he claimed that he could not remember if he took his clothes off before entering the pool. The cleaner said that he woke up the next day in his underwear “and his board shorts must have been wet because his underpants underneath had been wet”.

He told the FWC in support of his unfair dismissal application that a colleague also told him he had been in the pool for a few minutes but had his underwear on.

A HR incident report, which named a catering manager as the “reporting officer”, said the employer conducted multiple witness interviews and “several individuals independently identified [the cleaner] as the person who entered the pool without clothing”.

But while one of the workers gave the employer an “affidavit” confirming its version of events, and it appeared she signed it before a Justice of the Peace, she did not attend the Fair Work Commission’s determinative conference to enable her evidence to be tested.

Another provided a statement saying she did not see the cleaner naked in the pool. None of the others provided statements or appeared at the determinative conference, including the catering manager and the cleaner’s supervisor.

Commissioner Matheson found the employer’s “poor evidentiary case” did not support a finding that the cleaner swam naked in the pool. Nor did she consider the cleaner a “particularly credible witness” or believe his colleague had assured him the next day that had he kept his underwear on, given he did not volunteer this “important information” during the employer’s show cause meeting.

If he did swim naked in the employer-provided pool, she said he would have breached its site rules, code of conduct and workplace behaviour policy, which warns that failing to comply with it might lead to disciplinary action including dismissal.

The cleaner had been the only person to give direct evidence at the determinative conference and allow his evidence to be tested. The Commission therefore attached more weight to his sworn evidence that he wore his underwear and woke up in wet boardshorts.

Because the commissioner could not “reach a firm conclusion, on the balance of probabilities that the alleged conduct occurred”, she held that the employer lacked a valid reason to dismiss the cleaner, and that doing so had been unjust and unreasonable. The Commission said:

[50] There is a deficit of direct evidence from three of the four other employees alleged to have been witnesses to the events of 15 November 2025. It is recorded in an Incident Report prepared by a Catering Operations Manager that Elizabeth confirmed the Applicant was naked in the pool but there is no direct account from Elizabeth in the form of a statement of otherwise. The Respondent’s sole witness did not appear in the proceedings to enable their evidence to be tested in relation to a material contested fact. The only person who appeared in the proceedings to give direct evidence and enable his evidence to be tested was the Applicant. The Applicant maintained he was wearing underwear, his explanation being that he woke up in wet boardshorts. While he may have recalled this after he provided his account of events to the Respondent, I attach more weight to his sworn evidence than that of the purported accounts of the people who did not appear at the determinative conference and whose evidence was unable to be tested in circumstances where there was a contest about a material fact. The Respondent’s poor evidentiary case does not support a finding that he was naked in the pool. In these circumstances, I am unable to reach a firm conclusion, on the balance of probabilities that the alleged conduct occurred. On this basis I am unable to conclude that there was a valid reason for the dismissal.

Commissioner Matheson estimated the cleaner, who did not seek reinstatement, would have kept his job for another six months if not for his dismissal and earned about $41,400, based on his $3180 fortnightly income.

Lessons for employers

Evidence wins cases. How these cases are run in the Tribunal really matters. The Employer in this case underestimated the proceedings and what they needed to do to prove their case. The employer thought just providing documents to the Tribunal was going to get them over the line. Employers must provide evidence, affidavits and a thorough investigation conducted with transparency and diligence. Do not underestimate the task of appearing in the Commission.