FWA in Perth recently had to decide whether an employer's
failure to notify an employee of specific allegations of sexual
misconduct rendered his dismissal unfair.
In the case of James Pritchardv Timberglen Pty Ltd
T/A Mindarie Marina, the Applicant,
Pritchard, argued that he was denied the opportunity to respond to
allegations against him which ultimately led to his dismissal. The
Respondent claimed that the Applicant had been warned about similar
conduct in the past and that dismissal was necessary to avoid the
risk of them being held vicariously liable for his conduct.
As employers will be well aware, the rules of natural justice
ordinarily require that accusations of misconduct should be put to
the person concerned and they should be allowed the opportunity to
respond. In this case, the Respondent called five female witnesses
at the hearing, who gave evidence of the Applicant's behaviour
Two of the allegations were deemed serious. The first was that
the Applicant repeatedly made physical contact with female staff.
Although not particularly serious in isolation, FWA concluded that
it was unwelcome conduct and that its repetition made it serious.
The second involved the Applicant and a young female staff member
participating in "body shots" (where alcoholic shots are
effectively drunk from the other person's body).
FWA said that the Applicant was in a position of authority and
control and "had a responsibility to ensure that all staff
were confident that they would not be subjected to any avoidable or
unwelcome physical contact." The fact that the "body
shot" incident occurred out of office hours at a Christmas
function did not relieve him of his responsibilities. The incidents
referred to, taken together or separately, were enough to justify
FWA found that he had been told of the reason for his dismissal
but also that he was not given details of the allegations against
him. It also found that the Respondent's reasons for
withholding the allegations (claiming to protect the complainants)
were not compelling. Nevertheless, the decision to dismiss was
It was not specifically stated (but presumably to be inferred)
that the following of a fair procedure would have made no
difference. Although justified on the facts of this case, employers
should be careful to follow proper procedure in all but the most
Unless there is a real risk that to do so would compromise the
safety or welfare of others, or would be utterly futile, the
employee should know the allegations being made against them and be
given the opportunity to respond. A proper investigation and
hearing within the employer's procedures should effectively
avoid the need to undertake the same exercise before a
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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