Employee convicted of sexual offences secures reinstatement to previous position
The FWC has ordered the reinstatement of a train Station Duty Manager who had been dismissed after initially being found guilty of common assault and sexually touching a child between the age of 10 and 16 years of age at his workplace.
The employee, ME, had been employed by Sydney Trains for nine years, had an unblemished disciplinary record, and was regarded as an excellent employee. He had performed various roles for Sydney Trains prior to being appointed as a Station Duty Manager in 2019.
His dismissal arose from a single incident on 23 March 2021 when it was alleged that he hugged a female school student in the station concourse and, at the same time, kissed her on the neck. The incident was captured on CCTV. Sydney Trains investigated the incident and ultimately found that ME had hugged and kissed the student in contravention of its Code of Conduct and terminated his employment effective from 28 January 2022.
Both criminal offences were found proven, and ME was found guilty and sentenced in December 2021. He successfully appealed the decision, and the findings of guilt and orders of the Local Court were set aside.
Sydney Trains relied on two reasons for the dismissal, the fact that ME had kissed the student on the neck, and secondly, even if he didn’t kiss the student on the neck, the fact that ME had hugged the student.
Sydney Trains submitted to Deputy President Michael Easton that both actions constituted misconduct.
Due to the student’s age and the nature of the incidents, she was not called as a witness and, therefore, the primary evidence related to the CCTV video footage. Further, the Deputy President noted that both ME and the student’s recollections of the incident contained some minor errors when compared to the footage.
As the Deputy President noted,
“I have viewed the video again and again and I am comfortably satisfied that it does not show that Mr (E) kissed the student. The quality of the CCTV footage is very good. The video does not support the student’s account as far as it does not show Mr (E) kissing the student on the neck or show even a moment where it could have been possible for Mr (E) to kiss the student on the neck”.
The Deputy President noted that ME has a beard and questioned that none of the student’s statements referred to her feeling Mr E’s beard or whiskers on her neck or face. He noted that CCTV suggested the account of the student was an honest but mistaken belief that Mr E had kissed her.
The Deputy President also noted,
“I cannot, therefore, find as a matter of fact on the evidence that Mr (E) kissed the student, and therefore cannot find there was a valid reason to dismiss Mr (E) from his employment in relation to the kiss”.
In finding the termination to be harsh, Deputy President Easton also noted,
“Mr (E’s) action in hugging the child fell on the wrong side of the boundaries that workers must keep within. Workers cannot be physically familiar with customers, particularly when those customers might be children that are inherently vulnerable simply because of their age and inexperience. However, Sydney Trains can be uncompromisingly vigilant and can enforce proper boundaries without dismissing Mr (E) because of one isolated incident in which he hugged a child. In the circumstances the dismissal of Mr (E) was harsh”.
The Deputy President suggested there were more suitable responses by Sydney Trains other than dismissal and ordered his reinstatement.
For queries about allegations of sexual misconduct, conducting investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to email@example.com
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.