Reform bullies or show them the door?

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Fair Work Australia has upheld the dismissal of an employee who was terminated for systematic sexual harassment and bullying of a co-worker – because the risk that the individual would reoffend was high, the dismissal was warranted.

According to workplace law experts at Clayton Utz, the case of Graham v Bankstown District Sports Club Ltd [2012] FWA 7977 has demonstrated that terminating the employment of a workplace bully may not only be justified in some circumstances, but also necessary for employers to ensure that employees are provided with a safe work environment.

The dismissal followed a complaint by an employee against a colleague who he said had been repeatedly sexually harassing and bullying him. The employee alleged that the colleague:

  • made comments to the employee in front of other staff that he was a virgin, or he was gay;
  • singled out the employee during his shift to do tasks that could have been done by or shared with other employees and talking to him in an aggressive tone of voice;
  • made statements of a sexual nature to the employee that made him feel uncomfortable and ill while at work; and
  • after an investigation into the employee's complaint had been lodged, approaching the employee and trying to discuss the matter with him, even though he had been instructed not to.

After the employer had conducted an investigation of the complaints, it was concluded that enough of the allegations had been substantiated to warrant his dismissal. The employment was terminated on the grounds that the behaviour constituted serious misconduct which contravened the employer’s Code of Conduct.

The dismissed employee then challenged his dismissal, arguing that his conduct was “light hearted banter” intended as a joke, and that the employee had never resisted or complained about the comments directly to him.

In the Fair Work Australia findings, the claim that the employer had to assess whether the claim was in fact ‘serious misconduct’ was thrown out. Instead, the arbitrator found that it was only necessary to determine whether there were valid grounds for dismissal. Because the dismissed worker’s conduct was consistent with the Australian Human Rights Commission's definition of sexual harassment, and also fell within the type of behaviour that was prohibited under the club's policies on the prevention of workplace bullying and harassment, the dismissal was upheld.

It was also noted by FWA that the individual had received training in the club's Code of Conduct, and therefore should have been aware that his conduct was in breach of these policies.

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