By Gaby Grammeno Contributor
The worker was employed as a senior radiologist at a clinic in Cairns.
A degree of friction developed between him and a fellow employee, a radiographer who worked closely with him. When she complained about him, alleging sexual harassment, victimisation and bullying, the employer commissioned an employment law consultant to investigate the radiologist’s conduct.
The consultant’s report concluded that the allegations were substantiated and that his conduct had been contrary to the employer’s workplace policies handbook. The employer then sacked him without notice, for behaviour considered by management to be serious misconduct.
The radiologist claimed damages for what he alleged was wrongful termination of his employment.
The case was heard in the Supreme Court of New South Wales.
In court
The radiologist claimed the employer had refused to give him relevant documents, withheld information about the basis for the complaints, denied him an opportunity to respond, and caused him financial losses by repudiating his contract. He claimed the employer had failed to act reasonably.
The court’s focus was on whether the radiologist had engaged in the alleged sexual harassment, victimisation and bullying, and how the employer had dealt with the complaints and ultimately made its decision.
The court heard that there was only one incident said to constitute sexual harassment – an alleged pelvic thrust directed towards another employee at a Christmas party.
The radiologist denied the allegation, and recalled briefly imitating a movement from a New Zealand haka when this was mentioned in the conversation, suggesting that his bodily movement may have been misunderstood. Evidence from others was contradictory, and there was nothing in the context or circumstances to explain why he would have made a pelvic thrust towards the other employee.
Justice Richard Cavanagh was not satisfied to the required standard that the radiologist engaged in conduct of a sexual nature towards the other worker on that occasion, so the allegation of sexual harassment was not made out.
With regard to the alleged ‘chronic bullying’ of the radiographer he worked with, her evidence was that the radiologist’s rudeness began when the software used at the clinic changed. She said he became frustrated with it and she felt he was blaming her for problems with the technology, which upset her.
She observed that after she discussed his behaviour with the HR manager, the radiologist spoke less often to her and she felt he treated her in a rude, abrupt way with repeated put-downs she found hurtful, unfair and humiliating.
After two years of behaviour she found unacceptable, she made a formal complaint, which triggered the investigation by the consultant.
Justice Cavanagh considered that the radiologist’s interactions with her may have signalled his frustration, but he did not accept that she ‘was ever being singled out or in some way humiliated’ by this.
He said the radiologist’s decision not to speak to her as they passed in the hallway or go into the tearoom with her ‘might be described as rude’, but did not consider that such conduct could fall within the definition of bullying a fellow employee.
There was evidence that he’d engaged with her in a professional manner, so it was ‘not a case of a senior employee not speaking to a junior person over a continuous and lengthy period’.
Though he’d kept her waiting by refusing to acknowledge her presence, left her post-it notes written in capital letters and raised his voice at her once, there was no evidence that he’d sworn at her or abused her in any way, and no evidence that he’d held her up to ridicule in front of her peers or taunted or teased her.
Justice Cavanagh accepted that she was very aggrieved by his conduct. She ended up stopping work and receiving workers compensation.
He said it was clear the radiologist had wrongly blamed her for errors and other aspects of her work performance, but the language he used did not show he was ‘directing constant vitriol at her’ and the examples given were limited, so the evidence ‘did not rise to the level of constant belittling’.
Justice Cavanagh accepted that the primary origin of the conflict between the radiologist and the radiographer was his frustration with the technological difficulties he believed were hampering him in his work.
He did not consider the radiologist had engaged in serious misconduct. He said that to justify summary dismissal, ‘there must be deliberate or serious misconduct or serious professional misconduct or serious breach of duty’.
‘I do not consider that merely pointing to a word or words used in the Handbook and identifying that some of the [radiologist's] behaviour would be consistent with those words would give rise to a right to terminate without notice. Not just any failure to comply with any particular guideline or policy in the Handbook would give rise to the right to terminate without notice.‘
Justice Cavanagh was not satisfied that the radiologist’s conduct entitled the employer to dismiss him without notice.
He found the radiologist was entitled to payments he would have received if he had not been wrongfully dismissed, and awarded him damages of almost $368,000, based on the last three months of his fixed term employment period plus three months’ notice the employer would have had to provide.
What it means for employers
An employer’s right to summarily dismiss an employee is often ‘a question of fact and degree’.
Though the workplace may include people with different personalities, experience and competence, often mixed with high levels of stress and anxiety, there should be no place for rudeness and discourtesy at work. However, a line must be drawn between bullying on the one hand, and rudeness and discourtesy on the other.
