Employer conducted survey about harassment allegations against employee
A worker who was fired due to sexual harassment allegations recently filed a dismissal claim against his employer before the Fair Work Commission (FWC).
He said his employment was terminated after his employer investigated the claims by having his co-workers answer a survey form, which the worker said was unjust and unfair.
The worker had a position at a restaurant in Queensland, operated by the employer. The worker sought compensation for lost wages, citing that he couldn't return to the workplace due to false sexual harassment allegations made against him.
He was accused of sexually harassing several female employees. The employer conducted a survey among female employees, with five reporting instances of sexual harassment witnessed by the worker towards other employees and six claiming to have personally experienced the worker's misconduct.
According to records, the employer’s survey questions consisted of three questions and substantially contained the following:
"1. Has anyone here ever seen or heard of any sexual harassment towards the [involved worker]?
2. Has anyone here ever seen or heard any form of bullying or name-calling towards [involved worker]?
3. Has anyone here ever seen or [heard] any form of name-calling from [involved worker] towards other employee members?”
Seven out of the eight female employees completed the survey, and most responses were against the worker. A copy of the results was not provided to the worker at any time prior to his dismissal.
The employer said that it had used the responses from the employees' survey to establish a 'reasonable grounds' belief that the termination was justified.
It had questioned several female employees about the worker's involvement in sexual harassment. Based on these survey responses, which the employer required employees to provide within 24 hours, he believed that the answers supported the employer's decision to dismiss the worker.
The worker argued that his dismissal was “both procedurally and substantively unfair.” He said that there was no valid reason for the termination, and it was based on unproven allegations of sexual harassment that he denied. He claimed that the employer didn't afford him an opportunity to address these allegations.
The worker argued that the employer introduced the survey as a response to the worker's bullying complaint and tightly controlled the survey process and its timeline.
He disputed the sexual harassment allegations and presented evidence of his friendships with several employees who participated in the survey to demonstrate inconsistency with the responses.
Additionally, he provided evidence of prepaying for plane tickets for himself and another employee for flights from Cairns to Brisbane and Singapore.
The Commission said that the employer “did not set out that any investigation or discussion was undertaken.”
“The only further steps taken, other than collating the survey responses, in forming his ‘belief on reasonable grounds’ that the [worker] had done the alleged acts.”
“To establish reasonable grounds requires the tests of gathering the information and investigating and relevantly notifying the parties of the reasons and seeking relevant responses. None of those steps were taken,” the Commission said.
“The survey questions disproportionately focused on the [worker],” it added.
“The [employer] could not have held a reasonable belief at the time of the dismissal that the [worker] had engaged in the conduct, having not had any discussion with him or performing any investigation or consideration of the surrounding circumstances.”
“The evidence of the witnesses was not credible as set out due to the formulation of the survey, their personal relationships to the [parties], and the similarity of their responses, which cast doubt over the independence of the survey responses,” it said.
Thus, the Commission said the worker’s termination was unfair “due to the lack of procedural fairness and the lack of a valid reason for the dismissal.” It then ordered the employer to pay compensation.
