Employee sacked for sexually harassing hotel staff outside of work hours: dismissal upheld
An employee, whose service was terminated after sexually harassing two hotel workers, has lost his unfair dismissal case before the Fair Work Commission.
In February 2014, the seven-and-a-half year veteran of the company was staying at a hotel that the company regularly uses to accommodate employees as part of their employment. During this stay, the employee propositioned one hotel staffer, asking what she was doing after work whilst gesturing to his lap. The hotel worker also gave evidence to the commission that the employee’s behaviour continued and he later “groped” her bottom, despite her repeated requests for him to stop.
“I felt the person squeezing my bum with their hand,” said the hotel worker, who was also unnamed in court documents. “It felt like the person was using two hands to grope my bum because the contact was made across both bum cheeks and I believed I felt more than five fingers touching me. “I estimate that the person groped my bum for between one and two seconds in total.”
The employee viewed the incident differently, responding as follows: “Whilst returning to my seat I paused and tapped [her] to get her attention to ask her a question about the restaurant’s dinner arrangements. It was a friendly tap with right hand on the upper outer hip area and not with both hands. I did not touch [her] on her backside. I now believe I tapped her with my right hand [and] I had a Corona in my left hand.
In a separate encounter, with another hotel employee that evening, he made suggestive comments regarding her facial piercing, saying “it looks as sexy as f..k on you”.
The employee was dismissed from his employment in April 2014 as a result of his actions, following an internal workplace investigation that interviewed the hotel workers. The employer believed the termination of employment appropriate in light of an earlier warning, dated 1 February 2013. The previous warning related to an incident in another hotel, involving damage to a hotel room.
The Commissioner found that, during the investigation, the employee was given ample opportunity to respond to the allegations, had the support of his union throughout and was clearly notified of the reasons of for his dismissal.
Despite the employee’s apologies to the hotel worker on several occasions, and his argument that his actions had occurred outside of the workplace, the Commissioner found that the employee’s dismissal was reasonable. Citing the employer’s existing association with the hotel, the Commissioner stated: “The only reason why the Applicant was in the hotel at the time of the incident was because of the employment relationship he had with the Employer.”
Managers’ and Team Leaders have certain responsibilities as the custodians of their organisation’s workplace culture, even outside the physical workplace. A key element of the manager’s role is preventing and effectively managing bullying, harassment and discrimination issues in the workplace.
iHR Australia’s training for managers in equal employment opportunity and workplace bullying, harassment and discrimination covers this managerial responsibility, as well as building an understanding of how to approach and conduct conversations to address inappropriate workplace behaviour.