Commission notes employer 'tolerated' behaviour 'to a degree'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim of a worker who questioned his employer’s decision to terminate his employment after it received sexual harassment allegations.
The report included the worker’s inappropriate and offensive comments at the workplace, including asking female employees about their “sex life” and suggesting sexual relations with them.
Lindsay Swift was employed by Highland Pine Products Pty Ltd as a maintenance electrician in Oberon, New South Wales. On 3 January 2023, he was dismissed for serious misconduct.
The nature of the alleged misconduct was sexual harassment and a failure to communicate respectfully and appropriately with work colleagues.
Lindsay Swift, aged 50, relocated to Oberon, New South Wales, to join his employer after previously serving as an electrician at businesses in nearby Bathurst. Highland Pines operates a substantial timber mill in Oberon encompassing Dry Mill, Green Mill, and Kilns, with over 200 employees.
On 27 April 2022, Swift was enrolled in a six-month performance development plan due to concerns about “his punctuality, use of car parks, adherence to meal breaks, private use of company property (including the alleged removal of materials from site without authorisation).” Some of his co-workers’ issues said that he has comments that “had gone too far.”
Shortly after Swift's performance plan was signed off, the manager at the time received an email which contained feedback that his colleagues were “finding working with him difficult and at times off putting,” this included reports including:
After a series of exchanges between the parties and other allegations brought against the worker, his employment was terminated due to “serious misconduct.”
According to the case, Swift admitted saying “Did you do any rooting on the weekend?” to other employees. He said that it “was a common greeting in the workplace at Highland Pines,” and that “colourful language and sexual innuendo were rife.”
The Commission noted that there is “no evidence to support that other than Swift, employees of Highland Pines commonly greeted their colleagues in this way.”
Highland Pines also argued it had a valid reason to dismiss him since he failed to uphold a “respectful and appropriate communication style” towards his workmates, including:
The Commission observed that despite the worker’s offensive remarks, it was “tolerated” to a certain extent by the employer.
“The disparaging comments left by Swift… appear to have been tolerated to a degree by Highland Pines, as they were made some years ago and never actioned by relevant managers except generally in connection with the performance development plan in April 2022,” the FWC said.
“The same can be said of calling other employees ‘idiots’ or ‘fucking idiots,’ which Swift admits occurred in the presence of managers, and swearing in the workplace was common,” it added.
However, the Commission still ruled that the employer had a valid reason for dismissal, noting his “repeated pattern of disparaging and offensive conduct directed towards female employees.” It also said he “demonstrated a lack of respect” that was “inconsistent” with the workplace’s policy.
Thus, it said that Swift was not unfairly dismissed. “He sexually harassed at least three employees at work. In relation to two of those employees, this conduct continued over a lengthy period. It was serious misconduct and a valid reason for dismissal,” the Commission said.
