FWC determines dismissal unfair due to lack of procedural fairness
The Fair Work Commission (FWC) recently dealt with a case involving allegations of sexual harassment in the workplace, highlighting issues surrounding conduct and investigative procedures in dismissal cases.
The case centred on a long-serving worker who was dismissed following allegations of sexual harassment. The worker argued that the investigation was flawed, the allegations were largely false, and he was not given a fair opportunity to respond before his dismissal.
This case raises important questions about the balance between addressing misconduct and ensuring procedural fairness in employment terminations.
The case involved a worker with nearly 38 years of service at a coal mine operated by a large mining company. The worker was dismissed in March 2024 following allegations of sexual harassment made by two female contract cleaners.
The incidents were alleged to have occurred over three consecutive days in early March 2024. The employer conducted an investigation into the allegations, which resulted in the worker's dismissal.
The worker then applied to the FWC, arguing that the dismissal was unfair and seeking reinstatement or compensation.
The allegations against the worker included making sexually suggestive comments, encouraging the complainants to use their bodies to secure employment, and using offensive language. The employer engaged an external investigator to look into these claims.
The investigation process came under scrutiny during the FWC hearing. The Commissioner raised concerns about the thoroughness of the investigation and the independence of the investigator. It was revealed that the investigator maintained regular contact with the employer's senior staff throughout the process and provided a draft report to the employer for review before finalisation.
The Commissioner noted that the investigator failed to identify and interview a potential witness and conducted interviews with the complainants over the phone rather than in person. The investigation was completed in just seven days, which the Commissioner found to be unusually quick.
The employer argued that the worker's conduct constituted sexual harassment and was a valid reason for dismissal. They relied on the findings of their investigation to support their decision.
The worker denied most of the allegations, admitting only to making a comment about trusting a partner working in Western Australia. He argued that his remarks were not intended to be offensive and that the investigation was flawed.
The worker also pointed out that he was allowed to continue working for over two weeks after the initial complaints were made, suggesting that the employer did not initially view the allegations as serious enough to warrant immediate action.
The FWC found that some of the alleged conduct did occur and constituted sexual harassment. However, it also determined that the dismissal was unfair due to a lack of procedural fairness. The Commissioner noted that the worker was not given a "full opportunity" to respond to the allegations before the termination decision was made.
The Commissioner said:
"[The worker] has clearly not adjusted to the modern workplace. Whilst these comments may have been seen as a joke a few decades ago, that is not the case now. The law has changed, the workplace has become more sophisticated and diverse."
Regarding procedural fairness, the Commissioner said:
"Despite having a valid reason to terminate [the worker], the lack of procedural fairness afforded to [the worker] renders his termination unfair."
The Commissioner emphasised the importance of providing employees with a comprehensive opportunity to respond to allegations:
"It is my understanding that the phrase 'full opportunity' has not been determined by any Court or Full Bench. Following the principles of interpretation, in giving words their plain and ordinary meaning, I am prepared to adopt the Shorter Oxford English Dictionary definition of 'full' which, amongst other definitions, means 'abundant, copious, satisfactory, complete'."
The FWC ordered the employer to pay the worker one week's pay as compensation, reflecting the additional time that should have been allowed for a proper show cause process.
The case underscores the importance of ensuring all employees understand what constitutes appropriate behaviour in the modern workplace, noting that workplace norms and expectations have evolved.
Comments or behaviours that might have been tolerated in the past may now be considered inappropriate or even constitute harassment.
