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 conduct.

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 them.

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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