Does 'intention' matter in sexual harassment claims at work?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed an application alleging that he was unfairly dismissed by his employer, a company operating an alumina refinery.

The worker, who was employed as an Advanced Mechanical Tradesperson, was dismissed after an investigation into an allegation that he had inappropriately touched a female colleague while at work.

The case discussed workplace harassment, the employer's policies and procedures, and the process followed in investigating the incident and ultimately dismissing the worker.

‘Harassment’ incident at work

The worker commenced employment in April 2004 and was subsequently promoted to the position of Advanced Tradesperson. His employment was covered by a written contract and an enterprise agreement.

Prior to the events leading to his dismissal, the worker had been the subject of coaching and disciplinary action related to touching, grabbing, and shoving other employees, as well as failing to wear personal protective equipment.

On September 15, 2023, the worker and several other employees were gathered in an office at the refinery. The worker wished to speak to his Leading Hand, who was sitting at a large L-shaped desk that dominated the floor space.

To reach the Leading Hand, the worker turned his back to a female colleague, Witness A, and pushed between her and the desk, making contact with her lower torso.

"[The worker] did not ask Witness A to move. [His] hands made contact with the lower torso of Witness A,” the records said.

Harassment incident report

Witness A said that she was distressed after the incident, and when her partner entered the office and asked what had happened, she reported what had occurred.

The worker approached Witness A and apologized, but she still felt "weird" and had "an awful gut feeling" that she should report the incident.

Witness A initially hesitated to make a formal complaint, fearing backlash from colleagues. However, her supervisor informed her that he believed it was necessary to inform human resources about the incident and proceeded to do so.

The employer's Human Resources Consultant conducted an investigation into the incident. She interviewed Witness A, her partner, and the worker.

Witness A reported that the worker had placed his hands "low and underneath her bottom," causing her to jump and make a noise from the unexpected contact.

She also reported previous instances of inappropriate conduct by the worker, such as grabbing her shoulders and physically moving her out of the way.

During his interview, the worker admitted to making contact with Witness A's "upper bottom near the side of her hip," giving her a slight push. He denied the other instances of inappropriate conduct reported by Witness A, except for physically moving male colleagues in the way she described.

The worker was provided with a show cause letter inviting him to respond to the allegation that he had made "unwelcomed and socially inappropriate physical contact" with Witness A.

In his response, the worker did not contest that he had touched Witness A but explained that the room was crowded, he did not intend to behave in any sexual manner, and he had apologized to Witness A when he became aware that she was upset.

The worker’s dismissal

On October 25, 2023, the employer informed the worker in writing of its decision to terminate his employment summarily.

The termination letter described the reason for dismissal as the worker making "unwelcome and socially inappropriate physical contact" with Witness A, which made her feel uncomfortable in the workplace and had a negative impact on her.

Witness A reported feeling upset and uncomfortable about the incident. The FWC also noted that it was apparent during the proceedings that any visual contact with the worker was distressing to her. She also reported feeling “ostracized” at work since the incident and no longer enjoying her job.

Sexual harassment ‘serious misconduct’

“The worker insists that he does not engage in inappropriate contact in the workplace. His employment record would suggest otherwise. Both Witness A and her partner reported that the worker had engaged in further inappropriate physical contact with work colleagues,” the decision said.

“In the Investigation process the worker conceded that he had made physical contact with other colleagues, although he asserts that such contact was apparopriate.”

However, the FWC found that during the incident, “[the worker] was willing to push past a female employee with his back to her and his hands low, that his perception of what is appropriate contact differs materially from the view of his colleagues, his employer and society more generally.”

“The evidence suggests that the contact that occurred was not entirely unintentional. [The worker,] who is a man of solid build, turned his back, then tried to squeeze through a gap that did not have sufficient space. Without looking to see what he was touching, he applied force to move Witness A out of his way,” the FWC said.

‘Intention’ in sexual harassment allegations

“The application of force to move someone out of the way suggests an intention to have contact. There is no evidence of genuine urgency for his conversation to occur or that he could not have spoken across the desk rather than pushed past it. The contact was unnecessary and entirely avoidable,” it said.

“Regardless of his intention, the location of the contact was in an intimate sexual location. Its impact on Witness A was immediate and ongoing,” it added.

“Sexual harassment within the workplace is categorised as serious misconduct within the Fair Work Regulations, is unlawful pursuant to s.527D of the Fair Work Act 2009 and is noted in s.387 as conduct that can amount to a valid reason for dismissal,” the FWC said.

Was it unfair dismissal?

The FWC had to take into account factors such as the validity of the reason for the dismissal, whether the worker was notified of the reason and given an opportunity to respond, and the impact of the employer's size and human resource expertise on the procedures followed.

The FWC noted that "in order to be a valid reason, the reason for the dismissal should be 'sound, defensible or well founded' and should not be 'capricious, fanciful, spiteful or prejudiced.'"

The FWC also acknowledged that the worker was notified of the reason for his dismissal and was given opportunities to respond during the investigation and show cause process.

Ultimately, the FWC found that the worker’s conduct was “serious,” and that his dismissal was not harsh, unjust or unreasonable. It then dismissed his claim against the employer.