FWC orders reinstatement of employee dismissed for unacceptable behaviour

FWC orders reinstatement of employee dismissed for unacceptable behaviour

The Fair Work Commission has ordered the reinstatement of a male employee dismissed after a female co-worker alleged he had acted inappropriately towards her on two separate occasions. The case highlights the need for employers to undertake thorough investigations when responding to employee allegations.

The Applicant ‘RC’ was employed by CITIC Pacific Management Pty Ltd (CITIC) from 20 August 2020 until 6 April 2023 as a Dump Truck Operator at the Cape Preston mine site in Western Australia.

On 25 March 2023, a female co-worker ‘Ms K’ made a complaint to CITIC about RC’s behaviour.

Specifically, she claimed that the Applicant had, in late December 2022 or early January 2023, during an end-of-shift bus ride, instigated a sexually explicit conversation with several other employees that took place around the seat in which she was sitting. During this conversation, the complainant claimed that RC passed around a mobile phone showing explicit images between herself and the passenger beside her in such a manner that she was clearly able to see the contents.

Ms K further complained that in early March 2023, at a light vehicle park-up area, RC stared at her in a lewd manner and remarked to fellow employees, ‘Cooore, look at that’.

Following a series of meetings, CITIC terminated RC’s employment on 6 April 2023.

In evidence before Deputy President Peter O’Keefe, RC claimed that the investigation process was flawed, that he was not given a fair chance to answer the allegations against him, and that it was not open for CITIC, based on the investigations it conducted, to find that he was guilty.

Deputy President O’Keefe was quite critical of the investigations undertaken by CITIC. In regard to the second incident, no attempt was made to identify any potential witnesses to corroborate Ms K’s claims.

Regarding the first incident on the bus, it was highlighted that the majority of witnesses were not asked to provide written statements of their recollections.

In fact, in addition to RC’s strong denial of the allegations, at least five persons on the bus denied or could not recall any inappropriate comments being made or any mobile phones containing explicit images being passed around. One female co-worker stated that she had never heard RC say anything inappropriate and described his attitude towards female employees as being one of an ‘absolute gentleman’.

In determining RC’s fate, the Deputy President noted,

“I cannot be satisfied on the balance of probabilities that the particular allegations against the Applicant have been made out … In these circumstances, I find that I cannot be comfortable that the Applicant is indeed guilty of what is alleged. … I am, however, not satisfied that the precise allegations as presented can be attributed to the Applicant based on such evidence as has been submitted to the FWC”.

After finding that the Applicant did not engage in either of the behaviours for which he was terminated, the Deputy President found there was no valid reason for termination.

The Deputy President ordered reinstatement.

RC v CITIC Pacific Mining Management Pty Ltd (U2023/3578) 22 September 2023

For queries about dealing with allegations of misconduct, undertaking investigations, 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.

Ref: 381.0923

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