The Fair Work Commission (FWC) recently dealt with a case involving allegations of sexual harassment in the workplace. The case centred on a long-serving employee who was dismissed following allegations of sexual harassment.
The employee argued that the investigation was flawed, the allegations were largely false, and he was not given a fair opportunity to respond before his dismissal. The case raises important questions surrounding conduct and investigative procedures in dismissal cases.
Sexual harassment allegations
The case involved an employee with over three decades of service working at a large mining company. The employee was dismissed in March 2024 following allegations of sexual harassment made by two female contract cleaners.
The allegations against the employee included making sexually suggestive comments, encouraging the complainants to use their bodies to secure employment, and using offensive language.
The incidents were alleged to have occurred across several days in early March 2024, after which the employer investigated the allegations which resulted in the employee’s dismissal. The employee then applied to the FWC, arguing that the dismissal was unfair and seeking reinstatement or compensation.
Procedural Fairness
The employer engaged an external person to investigate the claims. However, the investigation process came under scrutiny during the FWC hearing. The Commissioner raised concerns about the thoroughness of the investigation and the independence of the investigator.
It was revealed that the investigator maintained regular contact with the employer’s senior management throughout the process and provided a draft report to the employer for review before finalisation.
The findings
The FWC found that some of the alleged conduct did occur and constituted sexual harassment. However, it also determined that the dismissal was unfair due to a lack of procedural fairness noting that the employee was not given a “full opportunity” to respond to the allegations before the termination decision was made.
The FWC stated that despite having a valid reason to terminate the employee, the lack of procedural fairness afforded to the employee rendered his termination unfair. This demonstrates the importance of providing employees with a comprehensive opportunity to respond to allegations.
The employer was ordered to pay the employee one week’s pay as compensation, reflecting the additional time that should have been allowed for a proper show cause process.
The case also outlines the importance of ensuring all employees understand what constitutes appropriate behaviour in the modern workplace, noting that workplace norms and expectations have evolved. Comments or behaviours that might have been tolerated in the past may now be considered inappropriate or even constitute harassment.
Workplace investigations can be complex to navigate. Our team of highly skilled and experienced investigators can provide much needed support and guidance to ensure compliance and best practice at all times. If you need support, get in touch today.
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