Employee dismissed for inappropriately touching co-worker

The recent Fair Work Commission decision in George Talevski v Chalmers Industries Pty Ltd¹ remind employers that they have a duty to protect employees against the inappropriate conduct in the workplace.

In this unfair dismissal case, the applicant was dismissed for serious misconduct after he:

• swore, raised his voice and banged the desk in a loud and threatening manner in a meeting in the office of the CFO
• refused to leave the CFO’s office despite repeated directions to do so
• on a number of occasions touched the hair and shoulders of the employer’s receptionist and
• despite being directed not to enter the building where the receptionist worked, entered the building a number of times on one day to repeatedly question the receptionist as to whether she had complained to management about him.

Employees in the business had not received workplace behaviour training, but the employer was able to show that each year it required each employee to sign off that they have read and understood the employer’s policies.

The applicant said he was not given an opportunity to respond to the reasons for the termination. The Commissioner rejected this position, finding that the employer had put the allegations to him at least twice. The applicant chose not to respond to his employer – instead opting to send a ‘written response’ to his colleagues.

The receptionist gave evidence that she did not consider the conduct to be of a sexual nature and she had not wanted to get the employee into trouble, but she wanted his conduct (which had reduced her to tears on one occasion) to stop.

Whilst the receptionist claimed the conduct was not sexual harassment, the employer rightly still treated it as inappropriate workplace conduct and dismissed the employee.

The Commission agreed, reinforcing the position that employers have a duty to protect employees against the inappropriate conduct and not just sexual harassment in the workplace. The Fair Work Commission found this was a valid reason for dismissal and dismissed the application.

¹[2018] FWC 1807