By Dr Laura Sowden, Partner and Annabel Cheung, Lawyer

The Fair Work Commission upheld the dismissal of a worker whose swearing at a colleague was sexual harassment.  

The Background

Warren Power (the Employee) was a sales representative for building supplier, Lyndons Pty Ltd (the Employer).

In August 2022 it was alleged that during a heated argument the Employee said words to the effect of “I’ll fuck you in the arse” or “suck my dick” (the Words) towards another employee.

The colleague gave evidence that the Employee regularly said inappropriate things and bullied him. The colleague filed a written complaint that very day and resigned two days later. The Employer conducted an investigation into the complaint.

In November 2022, the Employee was dismissed for bullying and sexual harassment.  The Employee disputed this and made an unfair dismissal application.

In Dispute

1. Whether the Words as alleged were used by the Employee; and
2. Whether the Employee was unfairly dismissed for bullying and sexual harassment.

The Words

The Deputy President was satisfied the Words were said by the Employee. It was held that the words used fell clearly within the definition of sexual harassment as defined in regulation 1.07(3)(a)(iv) of the Fair Work Regulations 2009 (Cth)).

The Deputy President noted that,

“whilst swearing in the workplace may or may not be commonplace the Words used by [the Employee] went far beyond simply swearing in the workplace and fall squarely within the definition of Serious Misconduct as prescribed by the Fair Work Regulations. Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome.”

The dismissal

The Employee sought reinstatement and/or compensation, arguing that the Words were never exchanged and that if it had, dismissal was a disproportionate response provided that swearing was commonplace at the Employer.

The Deputy President noted that she found the Employee’s complete denial not credible, and his evidence generally to be self-serving. This was particularly in light of the multiple witnesses who provided evidence of the exchange and who were all distressed and affected by the gravity of the Employee’s alleged conduct.

The Deputy President was satisfied that the dismissal was valid and related to his conduct and use of words in the exchange on August 2022. The Employee was appropriately notified of the reason for his dismissal and provided adequate opportunities to respond.

The Decision

The Deputy President was satisfied that the Employee was not unfairly dismissed within the meaning of s 385 of the Fair Work Act 2009 (Cth). The Employee’s dismissal was not harsh, unjust or unreasonable.

The Employee’s application was dismissed.

Implications

• be aware of what constitutes sexual harassment
• remember that sexual harassment is serious misconduct as prescribed by the Fair Work Regulations and gives rise to immediate termination
• when complaints are made, investigate
• when there are findings of misconduct, take action

The Employer in this instance did well by investigating the complaint of the colleague and actioning the behaviour, and the Fair Work Commission supported the process and decision making of the Employer.

Warren Power v Lyndons Pty Ltd T/A Lyndons [2023] FWC 1060 (5 May 2023)