FWC upholds unfair dismissal decision over alleged sexual harassment

by HCA14 Mar 2017
An employee at Calvary Hospital in Canberra had his unfair dismissal claim dismissed after he was sacked for allegedly sexually harassing another worker.

The accused man took his case to the Fair Work Commission and hearings were held in December 2016 and January this year.

It was alleged that the man invited his colleague for a cigarette and to see his new office on May 19, 2016.

The woman alleged that when they got to the new office he invited her in and walked over to the window.

“I thought it was strange that he was playing with the blinds and it made me feel uncomfortable to which I then said 'oh what a nice view'. I made that comment in the hope that he would stop playing…,” said the woman.

"[The man] said my name while I was walking away from him down the corridor, I stopped and turned around and found him standing very close to me and then he aggressively grabbed my left arm.

“He then grabbed my hips with both of his hands and tried to convince me to meet up with him that weekend … He also repeated 'It’s ok', 'don’t worry', 'don’t be scared', 'let’s catch up'."

Then man denied the allegations and said the woman wanted to see the office and that he never invited the woman for a cigarette.

The man was seeking reinstatement to his former position with back pay.

In June last year, the hospital arranged for Silver Sands Consulting to conduct an external investigation.

The report found he had indeed sexually harassed her, and also that he breached Calvary's code of conduct and behaviour policies.

The man, who had been stood down without pay on May 26, was notified in August that he had been found guilty of serious misconduct, and his job was to be terminated.

In his conclusion, deputy president of the Fair Work Commission John Kovacic said “I find that there was a valid reason for the Applicant’s dismissal, that the Applicant was notified of that reason and given an opportunity to respond to that reason, and that there are no other relevant matters.

Kovacic added that several witnesses had described the woman in some level of distress when talking about the incident.

“Having considered all of the criteria in s.387 of the Act I find that the Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed.”

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