By
Gaby Grammeno
Contributor
The worker was employed as an advanced mechanical tradesperson at Alcoa’s Pinjarra Alumina Refinery.
On 15 September 2023, when a number of employees were gathered in an office, the worker passed close behind a female colleague’s back and touched her ‘in an intimate location in a central area underneath her buttocks close to her anus’.
A short while later, the female colleague’s partner entered the office, noticed she was looking distressed, and asked her what had happened. He then confronted the worker who had groped her, accusing him of ‘grabbing [her] buttocks and squeezing’.
The worker denied grabbing and said he’d just ‘tapped her’ near her hip and asked her to move away, as he was trying to approach someone else through a limited gap due to the proximity of a desk.
After reporting the incident to the maintenance supervisor, the worker apologised to the female colleague, who responded, ‘It’s alright’. However, she later admitted she still felt ‘yuk’ and had ‘an awful gut feeling’ that she should report the incident, notwithstanding this exchange.
The maintenance supervisor later noticed she still looked distressed and raised the matter with her. She told him that the worker had apologised but that she felt he was not sincere and had played down what had occurred. She said she thought her colleagues would treat her differently if she complained.
Following this, she took time off work but was still distressed, according to the maintenance supervisor, who later rang her. After a discussion with another colleague, he reported the incident to the refinery’s human relations consultant, who subsequently conducted an investigation which found that on previous occasions, the worker had grabbed her by the shoulders and physically moved her out of the way, stood right behind her with his chin on her shoulder, and lifted her jacket to grab a rag from her back pocket.
The worker was stood down pending an investigation into allegations that he’d engaged in sexual harassment. He received a ‘show cause’ letter inviting him to respond to the allegation that he’d ‘made unwelcomed and socially inappropriate physical contact’ with his colleague, which made her ‘feel uncomfortable in the workplace’, in breach of the company’s policy and the Sex Discrimination Act 1984.
He responded that he did not intend to behave in a sexual manner or distress his colleague and had apologised to her as soon as he became aware that she was upset. Nevertheless, he was summarily dismissed.
He filed an application with the Fair Work Commission claiming unfair dismissal, seeking reinstatement, and orders that he be repaid lost remuneration.
In the Commission
The female employee who’d allegedly been inappropriately touched by the worker did not make a formal complaint about the incident. She participated in the investigation and only gave evidence at the hearing after she was ordered to.
FWC Deputy President Melanie Binet found her a credible and truthful witness who was significantly affected by the incident and its aftermath and accepted her evidence, as well as evidence of others who observed her distress in the following days. The DP noted that the woman’s reluctance to make a formal complaint ‘discount[ed] any suggestion that she fabricated or over dramatised the event maliciously to place [the worker] at risk of disciplinary action’.
The worker’s representatives at the hearing ‘sadly … chose to follow a well worn but discredited path of blaming the victim for the contact’. The Deputy President rejected the assertion that the woman had invited ‘accidental’ contact and said it was unclear why the worker’s need to speak to the person on the other side of his female colleague was so critically urgent that he needed to push through a narrow gap,’ placing his hands on a woman’s lower torso and applying some force to move her out of the way’.
‘Regardless of company policy, civil manners alone would dictate he would not push through other people’, she said.
Alcoa’s representative at the hearing gave evidence that during EEO training, employees, including the worker, were made aware and reminded that harassment includes ‘unwelcome physical or other conduct that creates an intimidating, humiliating, offensive or hostile work environment’. It was made clear that sexual harassment was unacceptable in the workplace, and violations could result in disciplinary action up to and including termination.
Evidence was also provided regarding other instances when the worker had been subject to counselling and disciplinary action, including allegations that he touched, grabbed and shoved other employees and failed to wear personal protective equipment.
Deputy President Binet observed that sexual harassment in breach of the company’s code of conduct and policy may be a valid reason for dismissal. Even if the worker’s conduct occurred without any sexual intent, she was satisfied that its nature and effect was of a sexual nature, and that his conduct was unwelcome.
‘The contact was entirely unnecessary. Touching a colleague’s buttocks involves deliberately touching a private and sensitive part of another person’s body, which a reasonable person can anticipate will be unwelcome or unwanted, causing the recipient to be offended, humiliated or intimidated by the conduct. It clearly breached the company’s code and policies governing behaviour in the workplace.
The Commission found that the employer had followed appropriate procedures. The worker had been given an opportunity to respond and to have a support person present at meetings relating to the allegations. His behaviour amounted to serious misconduct, and there were valid reasons for his dismissal, which was not harsh or unjust.
His application was, therefore, dismissed.
What it means for employers
Employers should ensure that their code of conduct and training relating to harassment, bullying and equal employment opportunity (EEO) highlight the fact that in the context of creating a safe place for co-workers and treating others with respect, harassment is not determined by the intent of the person who engages in such conduct but by the impact it has on the recipient.
