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“One-off” sexual harassment provided valid basis for summary dismissal

The New South Wales Industrial Relations Commission has upheld an employer’s decision to summarily dismiss an employee for sexually harassing a female co-worker. The Commission found the employer had undertaken a thorough and exhaustive internal investigation that demonstrated the seriousness with which the employer regarded its obligations to prevent discriminatory and harassing behaviour in the workplace.

Implications for employers

This decision reinforces key steps employers should take to prevent unlawful harassment and discrimination in the workplace, and ensure any disciplinary measures taken in relation to allegations of harassment and discrimination are fair and appropriate. These include:

  • implementing workplace policies in relation to harassment, discrimination and equal employment opportunity;

  • ensuring such policies are effectively communicated to employees through ongoing workplace training;

  • responding to allegations made against employees in a timely and appropriate manner in accordance with applicable policies, particularly when the allegations are of a serious nature and may (if proven) result in disciplinary action or dismissal; and

  • ensuring employees are afforded procedural fairness, which should include a thorough investigation of the alleged conduct, careful assessment of the findings of that investigation and due consideration of what action should be taken on the basis of those findings.

Background

The applicant had been employed by BlueScope Steel (the Company) since 1974. He was one of four pumphouse attendants employed by the Company to work at the water treatment plant at the Company’s steelworks. When the applicant was not required to work on-site at the plant, he was based in the pumphouse attendant’s shed.

The applicant had day-to-day conduct with a female co-worker who regularly attended the shed to discuss operational issues. The co-worker alleged that on one occasion when she was visiting the shed, the applicant had inexplicably hugged her and then kissed her twice on the neck with an open mouth. She claimed she tried to move away from the applicant but he had held on to her tightly, until she was eventually able to push him away and say “no”.

The employee informed her supervisor of the incident the next morning, and the Company commenced a formal investigation.

The applicant was stood down with pay while the investigation was conducted.

He denied the allegations, and claimed the co-worker had invented the story because she was angry with him for refusing to do a particular work task that was outside his job description. There were no witnesses to the alleged incident.

The initial investigation concluded that the allegations were substantiated and the applicant had breached the Company’s equal employment opportunity policy and anti-discrimination legislation. The Company then carried out a review of the initial investigation. This review was conducted by senior employees of the Company in order to ensure that all appropriate steps had been taken and due consideration given before any final decision was made.

Following the investigation review process, the Company concluded that the allegations had been substantiated and there were sufficient grounds to terminate the applicant’s employment summarily for breaching the policy and anti-discrimination legislation. His employment was summarily terminated in March 2009 on the ground of serious misconduct.

The applicant commenced unfair dismissal proceedings in the Commission.

Decision

The Commission ultimately accepted the female co-worker’s version of events and found that on the balance of probabilities the alleged sexual harassment had taken place. The Commission rejected the applicant’s suggestion that his co-worker had fabricated the incident.

The Commission emphasised that there is no place for harassment, sexual or otherwise, in the workplace. Harassment, when proven in accordance with proper process, provides a sound basis for disciplinary action - including summary dismissal where the harassment is of a serious nature.

On the facts before it, the Commission held the applicant had not been unfairly dismissed. In reaching its decision, the Commission had regard to a number of factors including:

  • the serious nature of the sexual harassment that took place despite the fact it was a one-off incident

  • that it was not unusual for there to be no witnesses present to corroborate a complainant’s evidence

  • the candid and forthright evidence of the female co-worker - including her evidence that any previous contact she had with male colleagues, such as a pat on the head or shoulder, was part of the bond that had developed between colleagues and was not of a sexual nature

  • the seriousness with which the Company regarded its obligations under anti-discrimination legislation. This was evidenced by the extensive anti-discrimination policies and guidelines in place and the compulsory training all employees were required to attend

  • the level of procedural fairness demonstrated in the investigations undertaken by the Company, including the testing of the initial investigation findings by very senior levels of the Company’s management hierarchy, and

  • the questionable reliability of the applicant’s evidence.

The unfair dismissal claim was dismissed.

AWU, NSW (on behalf of Grahovac) v BlueScope Steel [2009] NSWIRComm 86.

​Who does this affect?
All Australian employers

 

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Review how the issues and developments covered in our publication impact your business. Consider if your internal processes need to be revised. We can help.

 

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