Court finds no fault when employer dismissed worker over sexual comments

Employee claimed he was improperly dismissed

Court finds no fault when employer dismissed worker over sexual comments

The Federal Court of Australia recently dealt with the case of an employee who claimed his dismissal amounted to an improper “adverse action” against him by the employer in response to formal complaints.

In its defence, the employer said that the reason for the worker’s dismissal was simple misconduct after being found to have made a series of inappropriate and sexually-charged comments at the workplace.

The complaints for which the employee claimed he was unjustly terminated were concerned with the investigation and discussion of that workplace behaviour.

The judge found in his ruling that while some of these complaints were covered under “workplace rights”, his behaviour alone had been sufficient cause for dismissal.

Background of the case

Before his dismissal in December 2019, the worker had the role of audit leader in the Australian Taxation Office (ATO).

Between July and November 2019, the worker claimed that he communicated a series of formal complaints about his having been identified as making of an inappropriate comment at work.

The comment, according to the Court, primarily detailed that the worker, in order to gain promotion within the office, “would be willing to have sex with his superior.”

By making the relevant communications through formal complaints, the worker argued that he only exercised a “workplace right.” He argued that he was being improperly dismissed in response to those complaints. He also commenced a legal action for defamation against those involved in reporting an alleged inappropriate comment.

The employer contended that the worker was dismissed on the basis of misconduct that placed the worker in violation of the employer’s policies.

According to the two officers who primarily determined the worker’s breach and dismissal, they were not motivated by any complaints made by the employee.

Moreover, the officers were satisfied based on the investigation conducted that the worker “engaged in the instances of sexual misconduct that were alleged against him and also that, because they were vexatious and/or unreasonable, his defamation action (and, prior to it, his threatened action) amounted to harassment.” Thus, there was a legitimate basis for the worker’s dismissal.

The Court’s decision

Despite the contentions made by the worker, the Federal Court ultimately found no improper adverse action against the employee. The Court was satisfied that the employer did not dismiss the worker because he made a complaint.

“He was dismissed because he was adjudged to be guilty of having conducted himself contrary to the requirements of [our code of conduct] and because those contraventions were considered sufficiently serious as to warrant his dismissal,” the Court said.

While the Court found that 7 out of 10 communications made by the worker indeed constituted an exercise of a workplace right, it found that the employer legally dismissed the worker because of violating standards expected of him.

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