Managing people

Worker abused colleagues, but dismissal still unfair

Despite having a valid reason for dismissal, a tribunal has upheld a worker's unfair dismissal claim after finding the employer failed to follow procedural fairness.

22 February 2024

The employee was a bar worker at a football club. The club’s investigation of his conduct concluded that he had committed misconduct in the following ways:

  • He bullied, swore at and sexually harassed four female employees. Comments included “p*ss off” and “get the f*ck out of the way”. He was twice counselled about making the comments.
  • A relationship between one co-worker developed, and the co-worker confided in him that she had been sexually harassed by a manager, but after it ended, tension between the two at work escalated. The employee claimed that the co-worker then spread false sexualised rumours about him. During an argument, he said to another co-worker “why don’t you go and get molested like [her]”. 

The employee had complained to management about the alleged rumour-spreading, and had applied for a “stop bullying” order.

However, when the second co-worker complained, HR became involved. It required him to attend meetings, but each time provided only vague details of why the meetings were required. After another meeting, it gave him a letter setting out the allegations made against him, then dismissed him, but backdated the date of dismissal to the previous day. HR had not investigated the co-worker’s claim about the “molestation” comment, nor had it warned him that he could be dismissed, nor given him an opportunity to respond to the allegations.

The employee claimed that the employer had not provided him with training relating to its sexual harassment or anti-bullying policies, or ensured that he had read and understood them. He also claimed that his comments were taken out of context, and were intended to be “jocular” and sarcastic (because he did not believe the co-worker), not harassing or bullying. He denied that any comments he made were of a sexual nature as required by the definition of sexual harassment.

He also claimed that the co-workers had committed misconduct (by spreading false rumours) but had not also been dismissed (in fact one of them was also dismissed).

Decision

However, the FWC said that commonsense should override the employee’s claimed ignorance of the policies. There was a basic standard of workplace conduct that should apply, and therefore the employer had a valid reason for dismissal. His comments and actions amounted to both sexual harassment and bullying.

But because the employer failed to provide procedural fairness before it dismissed him, the dismissal was unfair. The employer had also taken insufficient steps to make the employee aware of its sexual harassment and anti-bullying policies.

The FWC has yet to award a remedy.

What this means for employers

This case is another example where an employer had a valid reason to dismiss the employee (sexual harassment and bullying) but tripped up because it did not follow correct procedures. In this case, it should have investigated the co-worker’s complaint against him, warned him that he could be disciplined or dismissed if the investigation found it was substantiated, and given him an opportunity to respond to the investigation results and the complaint before a decision to dismiss was actually made.

Read the judgment

Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246 (30 January 2024)

 

Mike Toten

Freelance writer

Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management

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