Termination of employee for inappropriate behaviour towards female co-worker upheld

Termination of employee for inappropriate behaviour towards female co-worker upheld

Termination of employee for inappropriate behaviour towards female co-worker upheld

 

The Fair Work Commission has determined that the termination of a male employee for engaging in unwelcome and socially inappropriate physical contact with a female co-worker was justified. The case again reinforces the ‘zero tolerance’ approach that the Commission has tended to adopt in such matters.

The male employee, ‘JT’, commenced employment with resource giant Alcoa of Australia Limited (Alcoa) in April 2004 as a mechanical tradesperson and was later promoted to the position of Advanced Tradesperson. He was employed at Alcoa’s Pinjarra Alumina Refinery in Western Australia.

JT was dismissed on 5 October 2023 after an investigation into an allegation that he had touched a female colleague.

Prior to the events that led to his dismissal, JT had been counselled in November 2009 in relation to allegations that he touched, grabbed and shoved other employees. In February 2010, he was counselled for failing to wear personal protective equipment, and in September of the same year, he received a first and final warning for again not wearing personal protective equipment.

On 15 September 2023, a number of employees attended a meeting in a small office at the refinery.

At one point, JT sought to talk to his leading hand and moved towards him with the path partially blocked by a female colleague, referred to in the hearing as ‘Witness A’. He did not ask her to move but squeezed through the space between her and a desk and, in doing so, made contact with her lower torso with his hands.

In evidence before Deputy Commissioner Melanie Binet, it was accepted that no-one else witnessed the incident.

However, Witness A was approached by her partner shortly afterwards, appearing distressed. She told him that JT had touched her in an intimate location near her anus.

Her partner approached JT and accused him of grabbing Witness A’s buttocks and squeezing them. JT denied grabbing her and asserted that he had simply just touched her.

Several minutes later, JT approached Witness A and apologised to her. He claimed that she responded, ‘It’s alright’.

A subsequent investigation commenced, which determined that JT had acted inappropriately in the meeting. Alcoa has an EEO policy that states that sexual harassment is a breach of the company’s code of conduct and may be a valid reason for dismissal. Consequently, JT was terminated.

In upholding the decision, the Deputy Commissioner noted,

“There is no dispute that Mr (T) touched Witness A’s lower torso in the region of her buttocks and that evidence suggests that he applied force to push her out of his way … My observations of Witness A in the witness box was that she appeared to be a credible and truthful witness who was significantly affected by the incident and its aftermath. I accept Witness A’s evidence that Mr (T) ‘groped her’ touching underneath between her buttocks”.

Further, the Deputy Commissioner noted that his

“conduct viewed objectively was such that a reasonable person would have anticipated that Witness A would be offended, humiliated or intimidated by the conduct. The contact was entirely unnecessary”.

The application was dismissed.

JT v Alcoa of Australia Limited (U2023/11059) 2 April 2024

For queries about allegations, sexual misconduct, 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: 437.0524

Related Articles

Workforce Advisory Pty Ltd ACN 625359980 Phone 1300 925 529, 07 3607 3850 Email Office@workforceadvisory.com.au
Liability limited by a Scheme Approved under Professional Standards Legislation

@Copyright 2018 to 2023 Workforce Advisory Pty Ltd