By Catherine Ngo Content writer, presenter and podcaster

An employer has been ordered to pay $33k to a dismissed employee, a former truck driver for Phosphate Resources Limited (PPL) due to serious misconduct.   

PPL determined that the applicant, Mr S, violated four of its policies by sexually harassing and bullying an employee. These actions included repeatedly stating that the employee “was sucking the boss," and later humiliating and intimidating him after he filed a formal complaint.

 

Background

Mr S was employed at PPL since 2004. Around April 2024, he began to make comments to another employee, a Mr R, stating that he "knew how to suck the boss" while imitating a person performing fellatio. 

Mr R initially did not respond to the comments; however, after the behaviour became repeated, Mr R asked Mr S to stop the behaviour, or he would file a grievance against Mr S. Following this, Mr S repeated to other employees that Mr R could not take a joke and would report it to management. 

Following an altercation between Mr R and Mr S, where Mr S exhibited aggression towards Mr R, the incident was reported to management for investigation.

The outcome of the investigation was that PPL determined that Mr S had engaged in behaviour that it regarded as breaching several of its policies and dismissed him from his employment. 

 

The proceedings

Following the dismissal, Mr R applied to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed.

In the unfair dismissal proceedings, FWC Deputy President Peter O'Keeffe regarded Mr R’s behaviour as unacceptable but not warranting immediate termination. Despite the employee's initial denial, the Deputy President found that his subsequent doubling down and victim-blaming provided valid reasons for dismissal.

However, the Deputy President did take into consideration the Mr R’s claim that he was unaware of the four policies he allegedly violated, including the prohibition of explicit language.

The Deputy President challenged Mr S, saying: "The Applicant had sought to apologise at the first opportunity did not seem to me to be borne out by the evidence….. Secondly, I suggested that it was difficult to accept that an employee needed a policy to tell him not to accuse other employees of sucking the boss's dick and that simple life experience should have provided this knowledge."

 

Proper Code of Conduct training was neglected

The Deputy President expressed dissatisfaction with the HR Manager's account of employee training, questioning the thoroughness of policy implementation. Specifically, the toolbox meeting addressing the code of conduct was criticised for its brevity, lasting merely 30 minutes, and appearing to be a superficial exercise aimed solely at demonstrating compliance rather than promoting genuine understanding and commitment.

He ruled the dismissal was harsh, and directed the parties to confer on remedy however they did not reach an agreement.

The Deputy President ordered $33k in compensation, rejecting the PPL's argument that the amount should be much lower because the employee also received a 45-week termination payment (equivalent to about $127k).

 

Key takeaways

Employers must prioritise implementing Code of Conduct training and various people policies to foster a positive and compliant work environment. They are also responsible for providing employees with sufficient information, guidance, supervision, and training opportunities.

Particular attention should be given to onboarding new employees and contractors. They must receive thorough training to familiarise themselves with company policies and procedures. Existing employees should also participate in regular training sessions and annual refresher courses to stay updated on any changes or revisions.

It is crucial to regularly reiterate and discuss policies and procedures during team meetings. This reinforces the importance and advantages of these guidelines, ensuring that employees remain informed and committed to upholding them.

 

Read the judgement

Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 3039 (1 November 2024)