Touching of female member of public and inappropriate comments warrants termination

Touching of female member of public and inappropriate comments warrants termination

The Fair Work Commission upheld the dismissal of a male employee who asked if he could touch a female member of the public’s hair and then made inappropriate comments relating to her weekend activities. The case highlights that a single act of misconduct of a sexual nature may warrant the termination of an employee.

The employee commenced employment with the City of Darebin Council (the Council) on 24 March 2009 as a School Crossing Supervisor (the Supervisor) pursuant to a contract of employment. Although the Council operates 108 school crossings, the Supervisor was almost always assigned to work at one intersection being Station Street and Dundas Street in Thornbury. His hours of work were 8:15 am – 9:15 am and from 3:00 pm – 3:50 pm each school day.

The Supervisor was summarily dismissed for serious misconduct on 9 August 2021, having been found to have contravened the Council’s Code of Conduct in which the Supervisor had been trained and to have sexually harassed a member of the public, in breach of the Respondent’s Equal Opportunity Policy.

Prior to the single incident that led to his dismissal, the Supervisor was considered by his manager to be conscientious and respectful and had not been subject to any complaints.

A member of the public, ‘Ms S’ had routinely used the crossing for over three years as she worked at a nearby after-school hours facility. Although she did not personally know the Supervisor, she was aware that he routinely supervised the crossing and, after the incident, was able to give a clear description of his age, hair colour and ethnic background.

On 12 March 2021, Ms S says she took her normal route to the school and walked towards the school crossing, at which point she saw the Supervisor had arrived on his bike and had his uniform hanging on his bike.

She stated that her hair was curly on this day, which the Supervisor commented on, stating that he liked her hair curly and that it looked much better than when she wore it straight. The Supervisor then asked Ms S whether he could bounce one of the curls. While uncomfortable with the request, she nonetheless allowed him to touch her hair. She says she did so to be polite and so as not to appear rude. The Supervisor proceeded to touch her hair, and while he was doing this, Ms S observed the Supervisor’s eyes move to her chest. She states that she felt these actions were entirely inappropriate and left her feeling uncomfortable.

She further states that the Supervisor then asked her what she was doing on the weekend, to which she replied she was undertaking gardening chores. The lights then changed, at which point the Supervisor said to her, “Oh yeah, you’re a dirty girl, aren’t you? I bet you like to get your hands dirty, don’t you?”. This comment made Ms S feel extremely uncomfortable, but she laughed it off as she walked across the road away from the crossing. According to Ms S, the behaviour and comments of the Supervisor made her feel “uncomfortable, dirty and violated”.

The incident was reported to Human Resources, an independent investigation was organised, and the Supervisor stood down on full pay. The subsequent investigation determined that, on the balance of probabilities, the Supervisor engaged in the behaviours and inappropriate conduct claimed by Ms S, and he was terminated from his employment.

Throughout the investigation and subsequent Commission hearing, the Supervisor denied any wrongdoing on his part. However, Deputy President Ian Masson assessed the evidence in the following terms,

Having regard to the findings I have made that Ms (S) was a witness of credit and the inherent unlikelihood of her fabricating a story to implicate the Applicant, I prefer her evidence over that of the Applicant’s simple denial. I am comfortably satisfied that the Applicant engaged in the alleged conduct towards Ms (S) in that he inappropriately touched her hair and made inappropriate comments of a sexual nature”.

Having determined the alleged conduct, the Deputy President made the following comments,

I now turn to consider whether the conduct founds a valid reason for the Applicant’s dismissal. The Respondents Code of Conduct and Equal Opportunity Policy documents set out the obligations of employees in terms of respect for others and sexual harassment. The Applicant had undertaken training in these policies. The Respondent’s Equal Opportunity Policy defines sexual harassment as including unwelcome touching, staring, or leering at parts of another person’s body and comments of sexually demeaning nature. I am further satisfied that the Applicant’s conduct comprised each of these elements of sexual harassment and was therefore in breach of the Respondent’s Equal Opportunity Policy and the Code of Conduct”.

The Deputy President also noted, “There can be no tolerance by employers of that type of inappropriate conduct, be that directed towards fellow employees or members of the public”. 

The Deputy President dismissed the application.

RL v City of Darebin [2021] FWC 6656 (23 December 2021)

For queries about inappropriate behaviour, sexual misconduct, harassment policies and training, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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.

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