A company’s sexual harassment training, which occurred only two months before an incident took place, has helped it win an unfair dismissal case.
Momentum continues to build around tackling sexual harassment in the workplace following Grace Tame and Brittany Higgins’ recent speeches at the National Press Club and the public and media scrutiny Parliament House’s handling of these issues.
These and other high-profile cases of sexual harassment in recent years have led many employers to take a tougher stance on misconduct, roll out comprehensive training, and ensure they are abiding by a zero-tolerance policy.
A case in point occurred last April when a large organisation in the financial services industry summarily dismissed a long-standing senior manager for briefly touching a female colleague’s backside at after-work drinks. This was captured on CCTV footage.
The manager, who had worked at the company for 35 years and had an unblemished record, was dismissed after the company conducted an internal investigation into his behaviour.
The following month, the manager brought forward an unfair dismissal claim and, just last week, the Fair Work Commission found in favour of the employer.
In her findings, FWC Deputy President Melanie Binet emphasised how community standards around sexual harassment and appropriate conduct in the workplace have changed in recent years, and all employees should be well-aware of this fact.
“The bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the community since [the manager] commenced his employment,” said Binet.
“An even higher bar has been set for interactions occurring in work-related environments.”
Lyndon Burke, Principal of Burke & Mangan Lawyers, says that community standards guide the law to a significant degree, and shape how the courts will respond to different cases throughout the generations.
“Courts’ views will change as community expectations change, but employers always have an obligation under Occupational Health and Safety legislation to keep the workplace safe for other employees,” he says. “Employers should be aware of what’s expected, and community standards play a large part in framing those expectations.”
Employee shown to the door
Given the very serious nature of the misconduct, summary dismissal was a reasonable penalty since there are serious risks for failing to act on the employee’s poor behaviour, says Burke.
“There are OHS obligations for employers because they have to mitigate against the risk of harm… So if you haven’t trained your employees, and you haven’t taken any action against people perpetrating misconduct, then you could get done for breach of OHS legislation,” says Burke.
While the manager put forward a defence that the employee he was accused of sexually harassing welcomed and encouraged the behaviour, this line of defence only serves to strengthen the accuser’s position, says Burke.
“This is a line of defence I often see in sexual harassment cases, which only increases the court’s view that these employees have no gauge on their conduct and the impact it has on others. In this case, we have an older man with 35 years of experience at the company and a junior employee, who was married with children.
“Younger people, or those on a lower grade, often feel trapped and don’t know how to respond to this sort of conduct. Junior employees are more vulnerable and they are the ones who should be protected.”
While length of employment may factor into a Commission’s decision, in this instance, an unblemished and long tenure didn’t make the dismissal unfair.
“If it’s a serious matter, then that won’t necessarily help the employee. In this circumstance, the impact on the employee, the reputational damage to the company, community expectations and standards around sexual harassment, mitigates against the finding that it could be unreasonable and unjust.”
The company’s need to protect its reputation was a significant factor that weighed into the judge’s ruling.
“[This] is a high-profile bank and interestingly, in its decision the Commissioner talked about how [it] had been through the Royal Commission, so banks were in the public spotlight and their reputation was something they wanted to uphold,” says Burke.
Training could save your company
There was only a “small window” of time between the training and the incident, and this worked in the employer’s favour, says Burke.
“The company required its employees to undergo significant training called Doing the Right Thing. It covered how to interact with each other, and focused on sexual harassment, discrimination and bullying. This training happened just two months before the incident.”
Oftentimes, employees are required to complete training when they are onboarded, and this initial training might not be followed up with a refresher course or updated training throughout the course of their employment, says Burke.
This means a number of years could have passed between an employee’s training and the sexual harassment incident occurring, making it easier for an employee to claim they aren’t familiar with a company’s standards and policies for conduct.
A key takeaway from this case is the importance of running regular training on sexual harassment in the workplace, says Burke.
“Employers need to have policies in place about appropriate conduct, but there’s no point having a policy if you don’t train people. It’s invariably important that training occurs yearly.”
This should also be underpinned by clear and detailed policies.
“If you don’t have a policy along the lines of, ‘This is important to us and this is how we expect you to act in the course of your employment’, then the Commission could take the view that sexual harassment wasn’t such an important issue in the employer’s eyes that warranted them dismissing an employee.
“This isn’t to say employees can’t bring a sexual harassment claim, but employers may find it more challenging to defend a termination summarily.”
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