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Dismissal after sexual comment ruled unfair

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HC Online | 29 Jan 2014, 11:05 AM Agree 0
A Brisbane man’s dismissal following a sexually-charged email has been ruled unfair by the FWC. Why?
  • Yvonne Walker | 29 Jan 2014, 01:13 PM Agree 0
    I don't think the comment in this article "the FWC decision was based on the fact the email was clearly a joke" is helpful in determining what is, and isn't, sexual harassment in the workplace. If it were, then many offenders would get off scot-free. After all, many lewd emails, pictures, comments are made in jest - that doesn't make them acceptable.
    This current decision turns on the fact that an organisation can't allow a culture to build up where such an email is acceptable - and then expect to be able to dismiss someone for it.
    I acknowledge that the article does state this - but please, saying that the unfair dismissal case was lost because the email was 'clearly a joke' is not accurate.
  • Dean Allen | 29 Jan 2014, 03:29 PM Agree 0
    Yvonne, you need to read on, and not just stop at the bit that bothers you. It goes on to say, in addition...

    "The FWC’s decision was based on the fact that the email was clearly a joke. In addition, it was found that employees of Choice Homes regularly exchanged emails containing explicit content."

    The point is that it was a clearly a joke, and that this workplace had a culture of these kinds of jokes. It would be unfair for this employee to be dismissed for one email when the circulation of such emails in the organisation is common practice and nothing gets done about it. It's not saying that it being a joke condones sexual harassment, it is saying that the treatment of the perpetrator is harsh under the circumstances. Had it been a one-off email and there were robust systems in place around sexual harassment and use of digital media, or a history of other staff receiving disciplinary action for similar actions, then the case for dismissal would have been much stronger.
  • Kevin Howard | 29 Jan 2014, 11:00 PM Agree 0
    I sure we all understand what is wrong with the culture of Choice Homes.

    However, if you read the full FWC decision document it doesn't say anywhere that the FWC decision was "based" on the fact that the email was intended as a joke.

    That was simply one of several factors taken into consideration.

    Including "The dismissal was unreasonable because the conclusion that the email was inappropriate because it contained sexually explicit material, could not reasonably have been reached in circumstances..."

    and most importantly because "there was a workplace culture of distributing and disseminating emails that tick every box in the spectrum of highly offensive material...."

    This is the key. Not jokes.

    I therefore believe it is misleading to say that the decision was "based" on the fact that the email was a joke.
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