James Pritchard v Timberglen Pty Limited t/as
Mindarie Marina; Deputy President McCarthy – Perth,
12 September 2011
Mindarie Marina is a resort complex including a microbrewery and
hotel trading under the name of the Indian Ocean Brewing Company
(IOBC). The applicant was employed as the General Manager of the
IOBC. His employment was terminated on 13 December 2010 with regard
to his conduct with female staff as a person in authority.
The applicant challenged the termination on the basis that he
had not been accorded with procedural fairness, as he had not been
given the opportunity to respond to the allegations made against
him. He also alleged that the respondent did not comply with their
anti-harassment policy and procedure.
The respondent asserted that the applicant was involved in
conduct that they considered was sexual harassment of a number of
female employees. They claimed that the applicant had been warned
about his conduct and behaviour, but it continued. They also argued
that they had no option but to terminate the applicant's
employment, because if the IOBC did not do so, they would be at
risk of being vicariously liable for the applicant's
The applicant had previously been warned about touching female
staff. His work performance was otherwise acceptable.
The respondent called five female witnesses. The applicant
endeavoured to establish that the complaints and allegations were a
combination of solicitation by the respondent to gain information
in order to justify its decision and some form of conspiracy by
staff that were disgruntled with his management and were
retaliating with false allegations. These contentions by the
applicant were not accepted.
Some of the complaints made by some of the witnesses were
described by Deputy President McCarthy as 'minor',
including hugging, kissing on the cheek and touching females around
the hips or waist behind the bar, usually as he moved past
The physical contact with female staff was not considered
vulgar, or on any single occasion, serious. However, as it was
frequent and unwelcomed, it was inappropriate.
The other issue justifying termination was that the applicant
was involved in inappropriate behaviour at a staff function before
Christmas. The applicant and a young female staff member
participated in 'body shots'. That involves a person
licking salt off someone's body part and then sucking a lime
from the other person's mouth. The incident involving 'body
shots' was instigated by the applicant and involved a female
staff member whom he had authority over. Whilst the incident did
occur outside of working hours and at a Christmas function, the
time and place of the incident did not detract from the
responsibilities that the applicant had at that time. The incident
was considered indiscrete and irresponsible.
The respondent asserted that details of the complaints that led
to termination were not provided to the applicant, because they
wanted to protect those who made allegations or disrupted harmony
at the workplace. This was not accepted as a justifiable reason to
not provide the applicant with sufficient particularity to be able
to respond and explain any conduct or behaviour that was the
subject of complaint or examination.
Overall, and despite the procedural issues, Deputy President
McCarthy was not satisfied that the termination of the
applicant's employment was harsh, unjust or unreasonable, and
his application was dismissed.
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