Employers must perform a balancing act between protecting employees from bullying and providing fairness to the alleged bully in determining how severe any action taken should be.
Fair Work Australia has recently dismissed the unfair dismissal claim of an employee whose employment was terminated because of his sexual harassment and bullying of a co-worker, finding that the risk of the employee reoffending was high enough to warrant the dismissal.
Graham v Bankstown District Sports Club Ltd  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 and customers are provided with a safe environment.
What happened in the case?
The dismissal at the centre of Bankstown occurred after an employee lodged a complaint against a colleague alleging that he had been repeatedly sexually harassed and bullied. The employee alleged that the colleague, a part-time sommelier, engaged in conduct including:
- making comments to the employee in front of other staff that he was a virgin, or he was gay;
- singling 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;
- making 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's investigation into the complaint was completed, it was concluded that enough of the allegations made against the sommelier had been substantiated to warrant his dismissal. The sommelier's employment was then terminated on the grounds that his behaviour constituted serious misconduct which contravened the Club's Code of Conduct.
The sommelier challenged his dismissal, arguing that his conduct was just "light hearted banter" and was intended as a joke, and that the employee had never resisted or complained about the comments directly to him.
What did Fair Work Australia decide?
Firstly, Deputy President Booth rejected the sommelier's claim that FWA was required to determine whether his conduct constituted serious misconduct. She found that she only had to determine whether the employer had a valid reason for the sommelier's dismissal. (It should be noted that although the sommelier was dismissed for serious misconduct, he still received payment in lieu of notice.)
DP Booth found that the Club had a valid reason for dismissing the sommelier, as his conduct towards his co-worker was consistent with the Australian Human Rights Commission's definition of sexual harassment and also clearly fell within the type of behaviour that was prohibited under the Club's policies on the prevention of workplace bullying and harassment. As the sommelier had received training in the Club's Code of Conduct, he should have been aware that his conduct was in breach of these policies.
DP Booth concluded that the impact of the sommelier's conduct on his co-worker was "damaging" and "had a negative effect on the safety and welfare" of the co-worker.
Interestingly, although DP Booth acknowledged that the sommelier's age and difficulty in finding another job weighed in favour of a finding that his dismissal was harsh, this was outweighed by the evidence showing that there was a "mismatch" between the sommelier's values and "contemporary norms about what is acceptable in the workplace". DP Booth noted that the training undergone by the sommelier and previous warnings had seemingly had little effect, with the sommelier continuing to deny the conduct was wrong or passing it off as a joke.
Given this, DP Booth dismissed the application and held that terminating the sommelier's employment was necessary for the Club to ensure the safety and welfare of its patrons and employees, stating:
"The Club's concern that [the sommelier] presented a risk of reoffending is reasonable and for this reason a warning, even a final warning, would have been insufficient to discharge their obligations to other employees, and indeed patrons, to provide a safe place of work and entertainment."
Is workplace bullying covered by OH&S legislation?
Under the various workplace health and safety legislation that is currently applicable in Australia, there is very little or in most cases no specific reference to workplace bullying. Despite this, the general duty imposed on employers under applicable legislation to provide a safe workplace where employees and others are not exposed to hazards does extend to cover bullying and harassment. If an employer does not take reasonable action to ensure that its employees are not exposed to bullying behaviour and harassment, it may potentially be in breach of its obligations under that legislation.
Implications for employers
Most employers are aware of the need to treat bullying complaints seriously, investigate the complaints and take appropriate action. However, in dealing with employees who are alleged to have bullied or harassed other staff, it can be a balancing act between protecting employees from such behaviour and providing fairness to the alleged bully in determining how severe any action taken should be.
In many cases, counselling or a warning may be sufficient to prevent the conduct continuing. However, if an employer is faced with a situation such as in Bankstown, where the alleged bully is in denial regarding their behaviour, or their behaviour is so entrenched that a warning has no effect, the employer may be left with little choice but to terminate their employment in order to protect the safety and welfare of other employees.
While an unfair dismissal claim may be the result, this may be a necessary risk for an employer to take in complying with its duty of care to provide a safe place of work, and one that can be minimised if the employer follows a documented procedure which is consistent with its policies in relation to bullying in the workplace.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.