You would think that if an employee has done lots of unlawful things, like continually teasing an employee about being a virgin or being gay and making on-going statements to someone of a sexual nature, even after being warned to stop, then it would be okay for an employer to dismiss him.
Actually, not so. In fact, in work places today, I see more managers who don’t stop someone’s unlawful behaviour or don’t discipline a person for acting unlawfully because they are afraid that they will get in trouble for doing this. Employers are becoming afraid to act for fear of being told what they have done is wrong.
With this in the background I am thankful to see that Fair Work Australia has dismissed an employee’s unfair dismissal claim (which means it was okay that the employer dismissed him) for doing these very things plus more.
Why Did Fair Work dismiss his application?
But it is important to understand why Fair Work dismissed the employee’s claim, when other unfair dismissal cases have resulted in the other outcome.
Here are some key factors, some of which had to do with what the employer had done well and some had to do with the employee’s behaviour-
1. The employee’s behaviour did constitute sexual harassment and bullying- so he had done something unlawful
2. Even after an investigation had been conducted the person who had acted unlawfully didn’t acknowledge the significance of his behaviour dismissing it as “banter”, and a “joke”
3. He had been previously warned about his behaviour and it had not stopped
4. He had attended Code of Conduct training organised by his employer and so knew that these types of behaviours were not condoned by his workplace
5. There was a real likelihood that if he had not been dismissed his behaviour would continue and therefore place employees at risk of harm
What Can employers do before they dismiss an employee for unlawful behaviour?
Some great practical takeaways for all employers when dealing with employees conducting themselves unlawfully are-
1. Hold the person to account for their actions the first time it happens and provide oral/written warnings that are documented
2. Provide regular training to all staff about what are appropriate/inappropriate workplace behaviours
3. Investigate thoroughly and following the principles of natural justice
4. Assess whether there is an ongoing likelihood that the offending behaviour will continue.