Australia: The importance of establishing internal procedures for dealing with inappropriate and unwelcome contact in the workplace

Last Updated: 5 May 2018
Article by Michael Finch

Most Read Contributor in Australia, September 2018

On 18 April 2018, in the decision of George Talevski v Chalmers Industries Pty Ltd [2018] FWC 1807, the Fair Work Commission dismissed an unfair dismissal application made by a long-serving handyman.

He had been dismissed by a transport company for serious misconduct that included repeatedly touching a young receptionist, threatening and abusing the company's Chief Financial Officer (CFO), and failing to provide a response to the allegations of serious misconduct.

The receptionist gave evidence that the applicant had often invaded her personal space which made her feel uncomfortable. She said that he would regularly engage in uninvited touching of her shoulders and hair, and that he would give her unwelcome hugs.

The receptionist indicated that she did not believe that the applicant had any indecent motive. In fact, she likened his advances to "how he might treat his daughter".

She did not tell the applicant to stop, although that is what she wanted. She indicated that she did not want to get the applicant into any trouble.

Counsel for the applicant suggested that it was incumbent upon the receptionist to tell the applicant to stop. However, Deputy President Hamilton determined that it was "understandable" that, being young in age, the receptionist could not feel able to tell a much older man to stop. It is also made clear that the receptionist's acquiescence was not an indication that there was "mutuality" in the touching.

Counsel for the applicant also suggested that the applicant's lack of sexual harassment training ought to suggest that dismissal was harsh. Deputy President Hamilton acknowledged that the company could have done more to ensure that employees understood its workplace policies, however simply requiring each employee to sign an annual declaration that they read and understood policy statements was "sufficient" in the circumstances.

After the issue came to light a meeting was held regarding the applicant's health and wellbeing which included the CFO and the applicant. The CFO told the applicant that he did not look well and directed the applicant to go home. The applicant refused to leave, thumped the desk, repeatedly swore, accused the CFO of bullying and harassment and treating him like a terrorist, and threatened to sue the CFO personally such that the CFO would be left with nothing.

Counsel for the applicant submitted that "one shouldn't become ... too precious about what happened" in the meeting because it was a "truck depot". Deputy President Hamilton agreed that actions and words do have to be considered in context, and that such would include the nature of the workplace which may well be "somewhat rough and tumble". However, Deputy President Hamilton said that "there is a limit" and that what the applicant engaged in was "inappropriate conduct".

In relation to the applicant's failure to respond to the allegations of serious misconduct, it was noted by the applicant had "many occasions" on which he could have responded. Deputy President Hamilton described the applicant's claims of not having the opportunity to respond to his employer "fanciful" particularly because the applicant directed something resembling a response elsewhere; he had chosen to appeal to his fellow employees by writing to them and suggesting that the allegations were "completely false" and "fabricated by ... management".

Ultimately, Deputy President Hamilton said that the employer owed the receptionist a duty of care which included a duty to protect her against the conduct of the applicant. The employer was found to have "behaved appropriately" and the termination was fair.

There are a few key take away messages that arise from this case:

  • Employers should adopt formal internal procedures for dealing with complaints or grievances in relation to inappropriate and unwelcome contact
  • In developing such procedures employers should be mindful of power imbalances that might discourage certain employees from seeking help
  • Employers should offer meaningful training in relation to such procedures.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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