In her latest opinion piece, Fay Calderone highlights a recent Fair Work Commission case that seems to signal the Commission’s growing support for #TimesUp.

Last month I wrote that public support for the #TimesUp movement against sexual harassment has been echoed by employers, business leaders and slowly but surely, by our courts.

A recent Fair Work Commission (FWC) decision suggests the pace may be accelerating. It seems in a recent case the FWC has been more forgiving of proceduaral deficiencies than it has before, perhaps in favour of the greater good of creating healthy and respectful workplaces (my words, not FWC’s).

I’m not for a moment suggesting we dispense with proper investigations, procedural fairness and appropriate disciplinary procedures. There have been countless decisions where such deficiencies resulted in the FWC finding an otherwise valid reason for termination on substantive grounds to instead be harsh, unjust or unreasonable. This leads to hesitation by employers to act on conduct issues, including sexual harassment. This can create greater risks, perpetuate dysfunction and increase costs arising from the revolving door.

The decision in Carmelo Sapienza v Cash in Transit Pty Ltd T/A Secure Cash provides some reassurance to employers taking a zero tolerance position on sexual harrassment.

The case

Mr Sapienza was a banking courier when his employment was terminated with immediate effect due to inappropriate behaviour in dealing with clients. Three complaints were referenced in the termination letter, the most serious of which referred to Mr Sapienza acting unprofessionally and making young female employees of a client (ICE Design, a ladies clothing shop) feel very uncomfortable by allegedly:

• saying words to the effect of: “When will you be leaving your boyfriend so we can run away together?”;
• telling them they were good looking;
• asking an 18 year old employee for her telephone number, and saying he had dated girls of her age;
• telling the staff they had missed his birthday and asking “Where is my kiss?” whilst leaning over the counter and putting his cheek up to the girls’ faces;
• getting physically close to female employees and putting his arms around their waists and on their hips; and
• hugging employees.

Mr Sapienza acknowledged that after getting to know the client’s staff well he did hug the female employees on arriving and leaving the client’s premises, and they hugged him in return. He acknowledged he may have put his arm on the hip of one of the employees but did not recall this event. Mr Sapienza also accepted he may have asked the female employees for a kiss due to his “cheeky” nature and tendency to joke around.

Mr Sapienza’s explanation for this conduct was that, as an Italian, he was used to affection and that he also hugged staff at other client premises. He said he believed the physical encounters were consensual and friendly, and had he thought otherwise, it would have ceased immediately. Mr Sapienza said there was no sexual connotation in his conduct and at all times it was consensual and friendly.

The employer filed a Response Form but, extraordinarily, did not even show up for the hearing. As such there was no cross examination of Mr Sapienza, his evidence was accepted uncontested.  It was alleged that due to the nature of the complaints, none of the clients were prepared to identify themselves for fear of retaliation – a suggestion that was vehemently denied by Mr Sapienza. His evidence was accepted on this issue.

The decision

Having heard Mr Sapienza’s evidence, FWC Deputy President Bull held:

“I find that the admission by Mr Sapienza that he did hug and ask for a kiss from women as young as 18 years was sufficient to substantiate that the respondent had a valid reason for the applicant’s termination of employment. Despite Mr Sapienza’s explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naive, to say the least.”

It was accepted Mr Sapienza was not provided with an opportunity to respond to the reasons for the termination clearly documented in the termination letters, and that he was summarily terminated without even a verbal conversation with his employer. As such, whilst the employer had little if any human resource management expertise, it was found the process was seriously lacking in procedural fairness.

Nevertheless and quite bullishly by the FWC’s standards (pun intended), it was held that in view of Mr Sapienza’s admissions in respect to his physical contact with young female staff of a client, that the summary dismissal was not harsh, unjust or unreasonable noting:

“This conclusion is reached having regard to the considerable age difference between Mr Sapienza and the female employees. The explanation provided by Mr Sapienza of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons. This is a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment. If Mr Sapienza did not know or appreciate that it is inappropriate asking 18 year old females for a kiss and indulging in the practice of hugging as a greeting or goodbye, which may not be reciprocated willingly by much younger persons, he ought to.”

No doubt the news will spread to others, who ought to know as well.

Whilst this case provides encouragement for employers in dealing with sexual harassers, each case will turn on its facts and employers are cautioned to remain vigilant in the conduct of investigations, disciplinary procedures and in properly defending matters before the FWC. It does however provide yet another reminder that #TimesUp and the FWC is echoing the sentiment, quite surely in this case.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances

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