Despite making unwelcome comments to customers, Manager secures compensation payment

Despite making unwelcome comments to customers, Manager secures compensation payment.png

Despite making unwelcome comments to customers, Manager secures compensation payment

Despite determining that a bottle shop manager had made unwelcome comments of a sexual nature to a female customer, the Fair Work Commission has ruled that the termination was unfair due to a lack of procedural fairness afforded to the employee. This case again highlights the importance of presenting information to employees during performance management and discipline matters and allowing the employee the opportunity to respond.

The Manager had commenced employment on 3 August 2015 with Globe Bottle shops (Globe) as a permanent full-time employee.

On 15 March 2021, Globe received a complaint from a female customer alleging the Manager in the bottle shop had sexually harassed her. Her major allegation was that the Manager had said to her, “would you like a root Hehehe, receipt”, and laughed and leered at her to make her feel uncomfortable.

Globe management immediately forwarded details of the allegations via email to the Manager and stood him down. The correspondence did not identify the complainant, claiming her identity was withheld for reasons of safety and security at the customer’s request.

Two days later, they again wrote to the Manager, gave him the time and date of the incident, and afforded him 48 hours to respond in writing. He was also advised that at the expiration of the 48 hours, being midday 19 March 2021, Globe would decide as to the outcome of the investigation.

True to their word, he was advised on 19 March 2021 that Globe were satisfied that the investigation was complete, that the Manager had breached his duty of care obligations, and his employment was terminated for serious misconduct, with immediate effect.

In assessing the evidence presented, Commissioner Katrina Harper-Greenwell, noted, “I am satisfied on the evidence before me that (the Manager) made unwelcome comments of a sexual nature to (the Complainant), and in making the comment, he caused her to feel offended and unsafe”.

However, this finding was weighed down by her criticism of the management process. As she commented, “The dismissal of (the Manager) was nothing less than procedurally disastrous”.

The Commissioner’s reasoning for deeming the termination to be unfair included:

  • The Manager was not interviewed during the investigation;

  • He was not provided with full details of the complaint;

  • Globe relied on CCTV footage of the alleged incident, which they did not provide to the Manager; and

  • Globe had made the decision to terminate the Manager before the investigation was concluded.

The Manager was awarded compensation of two weeks’ pay, amounting to $3,000.

D B v Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits (U2021/2534) 30 August 2021

For questions about managing performance, terminating employees, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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