By

Gaby Grammeno

Contributor

Commissioner McKinnon said employers had a positive duty to take reasonable and proportionate measures to eliminate sexual harassment by their employees as far as possible, and that the company had not done enough to meet this duty.

The employee was dismissed in January 2023 for serious misconduct. Nine months earlier, he’d been placed on a six-month performance development plan in connection with concerns about his punctuality, use of car parks, adherence to meal breaks, private use of company property (including allegedly removing materials from the site without authorisation) and concerns that some of his comments to colleagues had gone ‘too far’.

His ‘over the top’ conduct reportedly included yelling and swearing, talking about his sex life with other workers despite their attempts to shut off the conversation, showing them photos of people that he had ‘rooted’ on the weekend and introducing himself to a supervisor by saying ‘Hi, I’m Lindsay the electrician, I like to root’.

Sexual harassment

His behaviour toward his co-workers had involved sexually harassing at least three of them, and with two of those his harassment had continued over a lengthy period.

This conduct reportedly included referring to ‘f*cking this fat bitch’ in the presence of female employees and showing them photos of women – some of whom were bare-breasted – on his phone, bragging about the women he’d ‘had’ on the weekend, describing various sexual positions in detail and regularly asking female employees, ‘Did you get f*cked on the weekend?’ or ‘Did you take it up the arse?’.

After receiving complaints from other employees, management met with the electrician to discuss them. He disputed the substance of the complaints, claiming that other workers had breached the company’s Workplace of Respect Policy and that he was the one who’d been bullied and harassed.

However, an investigation into his allegations led his supervisors to the view that his complaints could not be substantiated, and that they were instead dealing with a pattern of repeated and inappropriate behaviour by the electrician towards other employees, including inappropriate behaviour of a sexual nature.

In December 2022, the electrician was given a written list of the allegations against him and asked to respond.

A further meeting occurred on 3 January 2023, at which the electrician’s responses were considered. His employment was terminated on the grounds of serious misconduct.

The electrician then applied to the Fair Work Commission seeking a remedy for unfair dismissal.

In the commission

The commission heard the evidence of other employees and considered the inconsistencies in the electrician’s evidence, concluding that most of the allegations relating to sexual harassment were substantiated.

The employer submitted it had a further valid reason for dismissal on the basis that the electrician failed to maintain a respectful and appropriate communication style with his colleagues, for example, adopting an aggressive and intimidating manner, swearing, losing his temper, and referring to other employees as ‘idiots’ or f*cking idiots’ and to one woman as ‘dumb as dog shit’.

The commission found that a reasonable person would have anticipated the possibility that the other employees would be offended, humiliated, or intimidated by his behaviour.

It found that the electrician’s persistent pattern of disparaging and/or offensive conduct directed particularly towards female employees demonstrated a lack of respect and was inconsistent with the company’s Workplace of Respect Policy. He had earlier been warned about the importance of complying with that policy. His failure to do so, in addition to the sexual harassment of others, gave his employer a valid reason for dismissal.

What this means for employers

Commissioner McKinnon said the case had uncovered a workplace culture that did not encourage reporting of such harassment, so rather than reporting matters, employees tried to manage them on their own.

This "has allowed inappropriate behaviour to go unchecked for lengthy periods, increasing the risk of exposure to harm among employees", she said, noting that conduct can be sexual in nature and unwelcome, regardless of the intentions or feelings of the person engaging in such conduct.

“The employer will need to do more to meet its duty to prevent workplace sexual harassment in the future, having regard to its legal obligations under both the Fair Work Act 2009 and the Sex Discrimination Act 1984. This includes a program of training for managers and employees and letting go of the notion that an employer can only act on alleged misconduct if there is a formal complaint.”

Read the decision

Lindsay Swift v Highland Pine Products Pty Ltd [2023] FWC 1997 (10 August 2023)