FWC upholds termination of employee for sexual harassment and offensive language

FWC upholds termination of employee for sexual harassment and offensive language

FWC upholds termination of employee for sexual harassment and offensive language

The Fair Work Commission has rejected an unfair dismissal claim from a male employee who was terminated for using offensive language of a sexual nature in the workplace, as well as acting aggressively towards various co-workers.

The employee ‘WP’ commenced employment with Lyndons Pty Ltd T/A Lyndons (Lyndons) as a Sales Representative on 13 September 2021 at their Cairns office, prior to his dismissal on 25 November 2023 for serious misconduct involving his engagement in bullying and sexual harassment.

In June 2022, WP made a complaint against his direct manager, ‘Mr R’, after receiving a written warning for multiple ongoing problems with his performance. The complaint was investigated and found to be unsubstantiated.

Over the next several months, various employees were offended by WP’s actions towards themselves or against co-workers, leading to his dismissal.

In evidence before Deputy resident Theresa Dobson, a co-worker ‘Mr L’, employed in Counter sales, complained that WP had been aggressive towards him. He recounted one episode where, after advising WP he wasn’t available to complete a task for him, WP had said words to the effect of “I will take you outside”.

Another employee, ‘Mr M’, indicated that he had felt bullied and harassed by WP for several months under the guise of humour. He stated that on one occasion, WP had stated words to the effect of “come on then, get under the table, suck me off” whilst gesturing to his groin. On another occasion, he recalled WP coming up behind him and “bear hugged” him and that he had to struggle to get loose.

A female co-worker ‘Ms O’, confirmed that she had witnessed WP speaking to Mr M in the manner he alleged and that she heard him use the type of offensive words and phrases he recalled.

Following a further argument with WP, Mr M felt he had to resign.

Mr L also recalled overhearing a discussion with Mr M where WP had said, “I will f*#k you up the arse” and “suck my d*#k”. He found both comments offensive.

With regard to WP’s claim denying making any inappropriate comments, the Deputy President noted,

“The evidence of the Applicant was argumentative, contradictory, demonstrated a lack of insight into his own conduct and in all the circumstances lacked creditability”.

The Deputy President also noted,

“Further, whilst swearing in the workplace may or may not be commonplace, the words used by Mr (P) went far beyond simply swearing in the workplace and fall squarely within the definition of Serious Misconduct as prescribed by the Fair Work Regulations. Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome, and such conduct opens the Respondent to a failure of its duty to provide a safe place of work for its employees”.

The unfair dismissal application was dismissed.

WP v Lyndons Pty Ltd T/A Lyndons (U2022/11758) 5 May 2023

For queries about workplace behaviour, allegations of misconduct, 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: 363.0723

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