Is a “brief” intentional touch on the backside of an employee enough for dismissal?
Westpac employees attended a “sundowner” event after a professional development day. Attendance was voluntary – employees were not paid. During the evening, a long-standing senior manager briefly touched an female colleague’s backside. CCTV captured the incident.
The company held an internal investigation and terminated the manager even though he had an unblemished record. The manager brought forward an unfair dismissal claim.
The matter was heard in the FWC before Deputy President Binet on 4 February 2022 (John Keron v Westpac Banking Corporation U2021/3637). Ms Binet found in favour of Westpac. She highlighted the change in community standards around sexual harassment and conduct in the workplace have changed in recent years. All employees should know these changes.
She highlighted the new standard within the workplace was higher than previously accepted. There was a view community standards guide the law and how courts respond to cases. Courts reflect these standards in reaching determinations.
Westpac conducted employee training with a focus on “Doing the Right Thing”. The focus was sexual harassment, discrimination and bullying. Mr Keron participated in this training two months before the incident. The training was considered during the decision.
Key takeaways: Have a clear policy relating to conduct must be enforced through regular (at least every year). Failure to do so may lead to the Commission assuming the company did not think sexual harassment an important issue (see more here)
#unfair_dissmissal #sexual_harassment