Thinking | 7 May 2018

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

Contact

Aaron Dearden

Aaron has extensive employment and industrial relations law experience working with clients across a range of industries.

Iona Goodwin

Iona has experience in assisting clients with both litigious and non-litigious employment and workplace relations matters.

You might be also interested in...

COVID-19 Thinking | 28 May 2020

Returning to the workplace: moving forward from COVID-19

Our Employment team developed a webinar that looked at the key work health and safety, and privacy issues that businesses need to consider as employees return to the workplace. The team will also provide an update on JobKeeper and general employment considerations.

Thinking | 22 May 2020

Rossato decision confirms Skene: casuals may not truly be casuals at all

On 20 May 2020, the Full Federal Court handed down its long-awaited decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84. The Court found that an employee of labour hire business WorkPac Pty Ltd (WorkPac) engaged and paid as a casual was in fact ‘other than a casual employee’ for the purposes of sections 86, 95 and 106 of the Fair Work Act 2009 (Cth) (FW Act).