FWC upholds dismissal of sexually harassing electrician

FWC upholds dismissal of sexually harassing electrician

FWC upholds dismissal of sexually harassing electrician

The Fair Work Commission has upheld the termination of an employee on the basis that he had engaged in sustained sexual harassment of fellow employees over a prolonged period.

The employee ‘Mr S’ worked for Highland Pine Products Pty Ltd (“Highland Pines”) as a Maintenance Electrician in central country New South Wales from 25 September 2019 until his termination for serious misconduct on 3 January 2023.

On 27 April 2022, Mr S was placed on a 6-month performance development plan in connection with concerns about his punctuality, use of car parks, private use of company materials, and concerns that some of his comments to colleagues had gone ‘too far’.

Shortly after Highland Pines management signed off the plan, new concerns were raised about Mr S’s behaviour towards other staff. Following an investigation, various allegations were put to him, the majority of which were substantiated.

The allegations included:

  • Telling a new starter to ‘leave his brain in the lunchroom’;
  • Discussing sexual exploits with a female colleague;
  • Introducing himself to the new plant supervisor by saying, ‘My name is ****, and I love to root’;
  • Approaching staff on a Monday morning and asking, ‘Did you do any rooting on the weekend‘?
  • Regularly asking female staff ‘Did you take it up the arse‘?
  • Using offensive words in the workplace.

Although Mr S suggested his behaviour was not dissimilar to the prevailing culture in the plant, Commissioner Sarah McKinnon noted,

“it is clear on the facts that Mr (S) engaged in conduct of a sexual nature in relation to Mr D, Ms B and Ms A. Importantly, for the purposes of this case, conduct may be sexual in nature, even if the person engaging in the conduct has no sexual interest in the person to whom it is directed. The relevant conduct of Mr (S) included initiating conversations about sexual activity, making statements of a sexual nature to or in the presence of others, sharing images of a sexual nature, and making enquiries about the private lives of others”.

Further, the Commissioner noted,

“I am satisfied that the conduct of Mr (S) towards Mr D, Ms B and Ms A was unwelcome. Each of these witnesses confirmed that they felt uncomfortable watching the way he interacted with other female employees, including the way he looked at them”.

The Commissioner added that the circumstances of his conduct

“were such that a reasonable person would have anticipated the possibility that each of these employees would be offended, humiliated, or intimated … I find that Mr (S) sexually harassed Mr D, Ms B and Ms A”.

Consequently, the Commissioner determined that Mr (S’s) sexual harassment constituted a valid reason for dismissal and that the dismissal was not harsh, unjust or unreasonable”.

LS v Highland Pine Products Pty Ltd [2023] FWC 1997 (10 August 2023)

For queries about sexual harassment, misconduct, or workplace behaviour, 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: 391.0923

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