Termination in response to harassment allegations overturned
A recent case before the Fair Work Commission highlights the onus upon employers to ensure that company policies and procedures are clearly explained to all employees. Failure to do so may invalidate what would otherwise constitute a legitimate dismissal.
The case involved a dismissed 62-year-old male employee, ‘Mr S’, who had been employed as a truck driver by Phosphate Resources Ltd T/A Christmas Island Phosphates (CIP) since 2004. The island is remote, being 2,600km northwest of Perth and has very few employment opportunities.
Until his termination for engaging in alleged sexual harassment of a male co-worker, Mr S had a largely unblemished employment history.
Mr S was terminated after CIP determined that he had made ongoing offensive comments to a male colleague beginning in April 2024. These comments included initially stating that the co-worker ‘knew how to suck the boss’ whilst he imitated a person performing fellatio.
The Commission commented that a toolbox meeting – as per the signed attendance sheet – was scheduled to last thirty minutes and had some twenty-three attendees. The Commissioner did not consider the process and a timeframe that would be conducive to explaining and promoting serious workplace behavioural requirements to employees, particularly in an environment where there may have been some language barriers. A “tick and flick” exercise designed to demonstrate compliance was insufficient induction on a complex issue, finding the termination harsh and unjust.
RS v Phosphate Resources Ltd T/A Christmas Island Phosphates (U2024/7715)
For queries about allegations of misconduct, investigations, educating workforces on policies and procedures, duty of care, 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: 482.1124
