In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held, in Talevski v Chalmers Industries Pty. Ltd. [2018] FWC 1807, that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

The employee had been employed since 1986, most recently in the position of Handyman, with the employer who operated a truck transportation and logistics company.

In November 2017, the employee was summarily dismissed for serious misconduct which included:

  • Abusive and threatening behaviour towards a manager – In a meeting where a manager enquired about the employee’s welfare, the employee swore at the manager, yelled and banged on his desk. The employee claimed that he had a “number of houses” and would sue the manager personally.
  • Inappropriate touching of a co-worker – A younger female co-worker complained that the employee would invade her personal space, regularly touch her shoulders and hair without invitation and would give her unwelcome hugs. The co-worker stated that the employee’s conduct was not sexual in nature and that she did not want to make a formal complaint.When the employee was advised that management wanted to speak to him about his behaviour, he approached the co-worker and asked if she had complained about him, even following her to an office when she tried to move away. The employee also approached her on other occasions which caused her to become distressed and flee to the bathroom.
  • Failing to follow reasonable and lawful directions – The employee failed to follow reasonable and lawful directions to leave the manager’s office and go home after the meeting with the manager. The employee also failed to follow reasonable and lawful directions not to enter into the main building except for work purposes when he entered the building to question the co-worker about the inappropriate touching complaint.

The employee argued that his conduct in the meeting with the manager had to be considered in the context of the workplace which was a truck depot. In response to this argument, Deputy Hamilton stated:

In my view, actions and words have to be considered in context, including the nature of the workplace, which may on occasions be somewhat rough and tumble. However, there is a limit. An employer is entitled to a certain standard of conduct from employees, including during disciplinary meetings.

The FWC found that the employee’s conduct in the meeting was inappropriate and was a valid reason for termination of employment.

In relation to the employee’s conduct toward his co-worker, the employee argued that the co-worker had asked him to stroke her hair and that she hugged him and she did not tell the employee to stop. It was also submitted that the employee did not have any sexual harassment training.

The evidence of the employer was preferred and the FWC found that there was no mutual touching and that the co-worker wanted the conduct to stop. It was noted that there was “inappropriate pressuring” of the “much younger employee” and that it was understandable that the co-worker felt like she could not tell the employee to stop.

The FWC further found that the employee’s touching of his co-worker was also a valid reason for the employee’s dismissal. DP Hamilton stated that the employer owed a duty of care to protect to the co-worker against such conduct and its actions in response to her informal complaints were appropriate.

The FWC also held that the employee had failed to follow the employer’s reasonable and lawful directions by failing to leave the workplace and by entering the main office building without justification.

Accordingly, the employee’s dismissal was found not to be unfair and the application was dismissed.

Lessons for employers
The case demonstrates to employers that they can and should act on unacceptable behaviour and conduct from employees.

Employers are best positioned to do this when standards of behaviour are set and enforced regardless of whether they work on a construction site or in an office. It is therefore important that employers have in place policies and conduct regular training in appropriate workplace behaviour. In this case, the employee argued that he had not received sexual harassment training. Fortunately, the FWC accepted that in the circumstances it was sufficient that the employee signed off that he had read and understood the employer’s suite of policies each year.

 

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