6 May 2014
A worker whose employment was terminated after he touched several co-workers’ breasts at a work Christmas party has been reinstated after the New South Wales Industrial Relations Commission found his dismissal was unfair.
The case rested partly on the inconsistency of the discipline received by the employee in comparison to a manager who had also behaved in a similar way.
While the manager who touched the breasts of two women at the party was simply demoted within the organisation, the other offender, a Project Officer, was dismissed.
The conduct had occurred at the organisation Christmas party in December 2012 with the individual's dismissal coming 12 months later, following a full investigation into his behaviour. The employee lodged an unfair dismissal claim with the NSW Industrial Relations Commission earlier this year based on mitigating factors which the employer failed to consider, including his past good conduct, the lesser penalty handed to another employee and his own remorse for his behaviour.
Interestingly, there was only one formal workplace harassment complaint lodged as a result of both Christmas party incidents; when the manager touched the breast of a woman of whom he was a direct supervisor. Surprisingly, this occurred when the woman came to the manager to report her co-worker’s inappropriate behaviour and the manager reacted by touching her breast and saying, “It’s OK, we’re gay.” Despite this, the manager was not dismissed and the less senior employee was.
The organisation claimed the applicant's punishment was more severe due to more women being involved in his case. This argument was quickly dismissed by the Commission as quantity should not be considered the issue and one woman would be "too many".
"The fact that [the manager] touched the breasts of two women and the applicant touched the breasts of five women is neither here nor there", said NSW Commissioner Inaam Tabbaa.
Commissioner Tabbaa then agreed that reinstatement was not impractical, primarily because the individual had effectively continued his role during the 12 months as the workplace investigation was being conducted. Additionally, the applicant had managed to maintain "cordial relationships" with most of the women involved.
However, his reinstatement came with clauses, such as a final warning on his record that means if any further misconduct is reported the employee could be immediately and fairly dismissed.
Additionally, the employee is required to undergo extensive Equal Employment Opportunity (EEO) training as soon as practically possible.
This case has shown how important it is for companies to act consistently across instances of workplace bullying, sexual harassment and misconduct, regardless of employees' seniority within the organisation. Employers must undertake thorough and fair workplace investigations when necessary, and ensure all individuals are adequately trained to recognise and respond to inappropriate behaviour. Managers must also be aware of their additional responsibilities to act on poor behaviour and deal with complaints effectively.