FWC cites other reasonable measures to address inappropriate actions
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving an employee fired from work after allegedly engaging in sexual misconduct with a young customer.
Convinced that the worker performed the unthinkable, the employer dismissed him despite his “good standing.” However, a crucial piece of evidence tilted the decision in the employee’s favour after workplace equipment was able to back up his defence.
Background of the case
The employee has worked at a passenger rail network in Australia for nine years, most recently as station duty manager, and not only did the worker have an unblemished disciplinary record, he was also an excellent employee.
Even the worker’s colleagues told the FWC that the worker was “honest, trustworthy, had a great work ethic, always helped customers and school students with any enquiries.”
However, on 25 March 2021, the employee was charged with common assault and sexually touching a child. The first charge arose because two days prior, the worker hugged a junior high school student who was on her way to school in the station concourse.
The worker had a previous relationship with the student as he had helped her two times earlier for separate issues.
Meanwhile, the second charge arose because the worker “allegedly kissed the child on the neck at the same time as he hugged her,” the records said.
The worker’s employment was suspended at the same time that he was charged and after he was found guilty in court, Sydney Trains moved to dismiss him.
The employer depended on two main reasons for the worker’s dismissal. First, the fact that the employee kissed the student on the neck; second, even if the employee never did, the fact that they hugged the student constituted serious misconduct.
Meanwhile, the worker contended that no such misconduct arose on the day of the incident. “The video and photo evidence which is available demonstrates that we exchanged a hug and spoke no more,” the worker said.
The employee also wished that the employer provided any training specific to dealing with children in the station so that they would know how to react appropriately in terms of a hug or similar approaches.
The Federal Court of Australia recently dealt with the case of an employee who was dismissed after being found to have made a series of inappropriate and sexually charged comments at the workplace.
The FWC’s findings
In the end, the commission found the train station worker’s dismissal harsh and unreasonable. Thus, it ordered the worker’s reinstatement to their former post, either at the same railway station or a different one.
The commission was also satisfied that the CCTV footage of the incident did not support the accounts that the worker kissed the student on the neck.
Moreover, it noted that while hugging the student was unacceptable, other reasonable measures were available to address the worker’s inappropriate action that did not involve dismissal.
“Staff should not hug customers who are children except in extreme and unusual circumstances, such as providing necessary comfort or protection to a child that is distressed or in danger,” the FWC said.
“Workers cannot be physically familiar with customers, particularly when those customers might be children that are inherently vulnerable simply because of their age and inexperience,” it added.
