Thinking | 7 November 2016

Workplace culture no excuse for sexual harassment

The Fair Work Commission has dismissed a former employee’s unfair dismissal application1, finding that the employer’s workplace culture was not to blame for the employee’s sexual harassment.

The employer (an unidentified airline) summarily dismissed the employee from his position as a Cabin Crew Supervisor following an investigation into multiple allegations of sexual harassment, including that the employee had:

  • shown explicit images of a crew member to other crew members while in flight
  • repeatedly made inappropriate and unwanted sexual comments and advances to a number of fellow crew members, including lewd observations about passengers.

The employee denied the allegations. However, on consideration of the evidence (including evidence given by eight cabin crew members) the Commission found that the alleged conduct did occur and that it was serious misconduct. Therefore, the employer had a valid reason for the dismissal.

The Commission was also satisfied that the employee’s dismissal was not ‘harsh, unjust or unreasonable’. In reaching this finding, the Commission gave consideration to factors including, but not limited to:

  • the employee’s knowledge of the employer’s policies concerning sexual harassment and the need to comply with them
  • the employee’s supervisory status. The Commission found that the employee’s conduct was in conflict with his role as a leader and expectations of those he led
  • the employee’s dishonesty during the employer’s investigation
  • the employer’s workplace culture.

Whilst the employee denied the allegations, he also appeared to suggest that he was a victim of the employer’s workplace culture, which he described as “pretty out there”. The employee said that it was “common for there to be discussions of a sexual nature while at work” and that if the employer “rigidly applied” its policies, much of these discussions would have breached the employer’s sexual harassment policy. The Commission was not prepared to conclude that the employer’s workplace culture was liable for the employee’s conduct, and held that the employee was “liable for his own conduct”.

This decision highlights the importance for employers of:

  • having in place a policy concerning sexual harassment, which clearly defines the meaning of ‘sexual harassment’ and the types of behaviour that may fall within its definition
  • ensuring that employees are aware of the employer’s sexual harassment policy and the need to comply with it.

1Applicant v Respondent [2016] FWC 7077 (17 October 2016)

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Mark Dunphy

Mark’s practice encompasses both litigious and non-litigious applications of employment and industrial relations law...

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