Sexual Harassment Lawyers say: dismissing an employee for sexual harassment may be harsh and unjust

When an allegation of sexual harassment is made against an employee, an employer must hear and investigate the allegation. When deciding to dismiss the employee who had committed sexual harassment, the dismissal must still be fair.

An employer must take care to penalize equally employees who are found guilty of misconduct. The dismissal of one employee and the demotion of another can form the basis for a finding of an unjust dismissal. This is what happened in the case of Public Service Association and Professional Officers’ Associated amalgamated Union of New South Wales (on behalf of Andres McCaskill) and Department of Attorney General and Justice [2014] NSWIRCComm 1009 (18 and 19 February 2014)

A 45-year old male was first hired as a temporary clerical officer in the District Court in 1993 but he had been promoted to various positions. By 2011, he was appointed Project Officer in the Recruitment Section of the Personnel Department. His position was supervisory.

In 2012, he attended a Christmas party. He and his line Manager were not intoxicated but they behaved inappropriately toward female co-employees. They touched the breasts of at least 5 women at the party.

When the female employees complained, the Project Officer immediately tendered an apology to them. He claimed that he did not intend to offend them. He was gay, and he did it only out of good humour, thinking the women were his friends. He thought he had asked their consent, but he’d had a lot to drink at the party. He was appalled and ashamed of his behaviour and he would not repeat the behaviour.

The line Manager, however, denied that he had been drunk. He denied having touched women’s breasts nor recall that he had. He claimed that if he had touched the women’s breasts, he would have admitted it.

The complaint progressed to further investigation under the Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter. The investigation found that the allegations against the applicant were not substantiated. The investigating body did not recommend dismissal given that he admitted the allegations and apologised for the behaviour. In the written report, the investigating officer emphasised his repeated admissions, his expressions of remorse and willingness to apologise and his self-remediation relative to excessive alcohol intake and behaviour toward women in a social setting. Just the same, the Director-General found the Project Officer guilty of misconduct. He was then directed to resign but he refused. He was notified of his dismissal on 20 December 2013.

At the hearing, the Project Officer asked that the complainants not be cross-examined to spare them from personal and professional embarrassment. He instead challenged his dismissal as harsh as the mitigating factors were not considered in choosing dismissal as the penalty for his misconduct. It was a singular incident for which he had taken responsibility and expressed remorse. His dismissal unfair because his Line Manager behaved in a similar fashion but never admitted to the misconduct nor did he apologise for it. And yet, his Line Manager was only demoted but not dismissed. Thus, he was treated more unfavourably than his Line Manager. Further, the penalty meted out to him did not fit his crime. Other forms of punishment could have been imposed on him in lieu of dismissal.

The Project Officer asked for reinstatement to his former position because while working at his job, he would have limited interaction with the complainants. He had a good work record. If conflicts of interest arise in the recruitment of or promotion of the complainants, relevant procedures were already in place. He had presented strong character references. Further, he worked in his full capacity as Project Officer while he was being investigated and until he was dismissed.

The Commission found that although the Project Officer did not engage in predatory sexual behaviour, still his conduct was deplorable, and it had the potential to undermine the integrity of the Department. Being gay is not an excuse. Of the five women whose breasts the Project Officer touched that evening, four laughed it off and were not offended. Only one of the complainants was offended.

Further, the Director-General could have considered giving the Project Director a caution, reprimand, fine, reduction in salary, demotion to a lower graded position or be allowed to resign. He could have been directed to enter counselling or re-training and development. He could have been placed under monitoring or a performance improvement plan. His performance could have been noted as unacceptable and unsatisfactory or he could have been transferred to another position.

Thus, the Commission found that his dismissal was harsh and unjust. The Project Officer was reinstated to his former position without back pay. A final warning letter would be placed on his personnel file that any future breach of the Code or of policies will be the basis of a summary dismissal. He would write a letter of apology to the five women. He will undergo re-training.

Have allegations of sexual harassment or misconduct in the workplace been lodged against you? Do you think you have been unfairly penalised as compared to other employees who had similar allegations against them? Call us today, speak with any of the sexual harassment lawyers at MKI Legal today. We can help you.

Mki Legal, is a specialist employment law firm operating in Perth, Western Australia.