Dismissal of long-term banking employee for inappropriate behaviour after hours upheld

Dismissal of long-term banking employee for inappropriate behaviour after hours upheld

The Fair Work Commission has upheld the dismissal of a senior banking employee with thirty-five years’ service after an internal investigation found that he had engaged in inappropriate behaviour towards two female bank employees at an after-hours function while intoxicated.

The employee, JK, commenced work with Westpac on 19 December 1985. At the time of his dismissal in 2021, he was a Senior Relationship Manager in the Commercial Banking Branch based in Western Australia, with two staff reporting to him. Prior to his dismissal, he had an unblemished employment record and had been the recipient of several internal awards.

That was all undone over the course of one night.

On Wednesday, 10 March 2021, JK attended an offsite professional development day organised by the bank with 160 other Westpac employees present.

At the conclusion, Westpac organised a non-compulsory social event at a nearby tavern. Although staff attended in casual clothes and were not paid for their attendance, Westpac provided free food and alcoholic drinks until approximately 6:30 pm. JK remained at the hotel drinking with several groups of Westpac employees, some of whom were known to him.

At around 9:15 pm, a female employee (Witness A) alleged that JK moved towards her and touched her inappropriately. The subsequent investigation viewed CCTV footage and interviewed a number of bystanders who could not attest to having witnessed anything inappropriate.

Nevertheless, the investigation concluded that on the balance of probabilities, JK had acted inappropriately and consequently had breached Westpac’s Code of Conduct and sexual harassment policies.

Several hours later, JK and a male colleague were in a queue waiting to get into the nearby Crown Casino. A female Westpac employee (Mrs S), unknown to JK at the time, approached a bouncer and suggested the pair should not be allowed into the venue, inferring they were intoxicated.

Shortly thereafter, JK approached Mrs S and shouted words to the effect of “you f**king idiot. Why did you do that”. She also claimed that he yelled at her, “you are a b***h” and “you are a wh**e”.

The first employee lodged a complaint against JK with Westpac and also complained to police, resulting in JK being charged with unlawful and indecent assault. The police matter is still under investigation and yet to be concluded.

Westpac determined that the first allegation of inappropriate touching was substantiated. The second allegation of inappropriate language was partially substantiated.

Following a brief show cause process, JK was terminated for serious misconduct effective from 13 April 2021, although Westpac did pay him five weeks salary in lieu.

The decision of Deputy President Melanie Binet was that Westpac’s decision to terminate JK was reasonable in the circumstances. As she noted,

“the bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the broader community. An even higher bar has been set for interactions occurring in work-related environments… (JK) was aware that Witness A was a junior work colleague and a married mother. In these circumstances, he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature…(he) himself acknowledged in cross-examination that uninvited touching of a woman on her buttocks had the very real potential to cause significant distress to the woman”.

With regard to JK‘s behaviour towards Mrs S, the Deputy President also noted, “directing profanities at an unaccompanied young woman late at night outside a venue of the nature of the casino is unreasonable. Any reasonable person would consider it offending, humiliating and threatening.”

It should be noted that the Deputy President was highly critical of Westpac’s choice of venue to host the initial function, the offering of several hours of free alcohol, and the absence of senior management ensuring staff departed the venue safely.

The application for reinstatement was dismissed.

J K v Westpac Banking Corporation (U2021/3637) 4 February 2022

For questions about misconduct, workplace behaviour after hours, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 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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