The employee said the conduct was due to his “Italian heritage”
The Fair Work Commission (FWC) has found Secure Cash was reasonable in terminating a 48-year-old man for inappropriate behaviour, including hugging and requesting a birthday kiss from an 18-year-old employee.
The FWC also found that it appeared that the respondent had little if any HR management expertise and the process it adopted concerning (the man’s) dismissal was seriously lacking in procedural fairness.
The Perth man filed an application for unfair dismissal after being terminated by the cash transit business in July last year following three separate complaints.
One of the complaints involved the man allegedly asking female staff "When will you be leaving your boyfriend so we can run away together?" which the man denied he said.
The man also allegedly stated to the young female employees that he had dated girls of their age. Again, the man denied that he had made any such statements, stating that he is a 48-year-old with no interest in anyone as young as 18. However, he admitted that he hugged the staff on arriving and leaving.
He also admitted that on one occasion he "may" have asked two young female employees at the shop "where is my kiss?" after telling them they had missed his birthday.
He then leant over the counter and put his cheek up to the women's faces, according to the store. While they did kiss his cheek, they said they felt uncomfortable and under pressure.
The man argued the kiss request was due to his "cheeky nature" and tendency to make jokes.
He added that as an Italian, he was used to affection and showing affection and claimed he kissed his father every time he saw him and hugged older staff at other premises.
Fair Work Commission deputy president Geoffrey Bull said that "in view of (the man’s) admissions in respect to his physical contact with young female staff of a client of the respondent, I do not find that summary dismissal was harsh, unjust or unreasonable, once this conduct was brought to the attention of the respondent".
“This conclusion is reached having regard to the considerable age difference between the man and the female employees," said Bull.
“The explanation provided by (the man) of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons.”
Bull added that this is a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment.
“If (the man) did not know or appreciate that it is inappropriate asking 18 year old females for a kiss and indulging in the practice of hugging as a greeting or goodbye, which may not be reciprocated willingly by much younger persons, he ought to,” he said.
“I have considered the clear procedural deficiencies involved in (the man’s) dismissal and the fact that he was unemployed for a two month period, viewed against his limited service with the respondent and the nature of the conduct in regard to the third complaint, which to his credit (the man) accepted some of which did occur.
“Having found that a valid reason for the dismissal existed and considering all other factors under s.387 of the FW Act, the Applicant has not demonstrated to my satisfaction that his dismissal was harsh, unjust or unreasonable.”
HRD contacted Secure Cash for comment, but did not receive a response prior to publication.
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The FWC also found that it appeared that the respondent had little if any HR management expertise and the process it adopted concerning (the man’s) dismissal was seriously lacking in procedural fairness.
The Perth man filed an application for unfair dismissal after being terminated by the cash transit business in July last year following three separate complaints.
One of the complaints involved the man allegedly asking female staff "When will you be leaving your boyfriend so we can run away together?" which the man denied he said.
The man also allegedly stated to the young female employees that he had dated girls of their age. Again, the man denied that he had made any such statements, stating that he is a 48-year-old with no interest in anyone as young as 18. However, he admitted that he hugged the staff on arriving and leaving.
He also admitted that on one occasion he "may" have asked two young female employees at the shop "where is my kiss?" after telling them they had missed his birthday.
He then leant over the counter and put his cheek up to the women's faces, according to the store. While they did kiss his cheek, they said they felt uncomfortable and under pressure.
The man argued the kiss request was due to his "cheeky nature" and tendency to make jokes.
He added that as an Italian, he was used to affection and showing affection and claimed he kissed his father every time he saw him and hugged older staff at other premises.
Fair Work Commission deputy president Geoffrey Bull said that "in view of (the man’s) admissions in respect to his physical contact with young female staff of a client of the respondent, I do not find that summary dismissal was harsh, unjust or unreasonable, once this conduct was brought to the attention of the respondent".
“This conclusion is reached having regard to the considerable age difference between the man and the female employees," said Bull.
“The explanation provided by (the man) of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons.”
Bull added that this is a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment.
“If (the man) did not know or appreciate that it is inappropriate asking 18 year old females for a kiss and indulging in the practice of hugging as a greeting or goodbye, which may not be reciprocated willingly by much younger persons, he ought to,” he said.
“I have considered the clear procedural deficiencies involved in (the man’s) dismissal and the fact that he was unemployed for a two month period, viewed against his limited service with the respondent and the nature of the conduct in regard to the third complaint, which to his credit (the man) accepted some of which did occur.
“Having found that a valid reason for the dismissal existed and considering all other factors under s.387 of the FW Act, the Applicant has not demonstrated to my satisfaction that his dismissal was harsh, unjust or unreasonable.”
HRD contacted Secure Cash for comment, but did not receive a response prior to publication.
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Dismissing an employee for ‘serious misconduct’: what you need to know
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