With the new Respect@Work amendments now in place, employers should be mindful of a recent decision handed down by the Fair Work Commission (FWC) where it upheld the dismissal of an employee on the basis that swearing at a colleague constituted sexual harassment.
In Power v Lyndons Pty Ltd T/A Lyndons [2023] FWC 1060, the FWC heard that in or around August 2022, a Sales Representative for Lyndons Pty Ltd (the Employer) was summarily dismissed from his employment after getting into a heated argument with a colleague where he said words to the effect of, “I’ll f***you up the arse” and “Suck my dick”.
The colleague resigned after this altercation and two days later, filed a written complaint with the Employer about the employee’s conduct towards him. Before the FWC, the colleague submitted that the employee had regularly said inappropriate things to him under the guise of humour.
The Employer conducted an independent investigation into the complaint which included obtaining evidence from several witnesses to the incident. In or around November 2022, the Employer advised the employee that the investigation substantiated the allegation and that the behaviour amounted to serious misconduct involving sexual harassment. On this basis, the employee was summarily dismissed from his employment.
The employee subsequently filed an unfair dismissal application.
The employee submitted that the alleged incident never occurred. He further submitted that even if the conduct did occur, the dismissal was a “disproportionate” response when swearing was commonplace at the workplace and that the words used should be considered “figurative”.
The employee also suggested that the alleged words used should be considered in the context of a dispute between him and his manager following a formal complaint he made after receiving a warning as to his performance. He stated that this conflict culminated in him taking periods of medical leave.
The Employer maintained that there was a valid reason for dismissal relating to the employee’s conduct because the witness evidence gathered during the investigation substantiated the allegation that the words used by the employee amounted to sexual harassment and therefore his behaviour was serious misconduct.
The FWC firstly dismissed the suggestion that the employee’s complaint about his manager was linked to his behaviour towards his colleague and subsequent dismissal. It found that there was no allegation of collusion between the parties and therefore no basis for the employee to blame his behaviour as having any connection to the prior dispute he had with his manager.
Turning then to the reason for the employee’s dismissal, the FWC found that the employee’s evidence was self-serving and his complete denial of the alleged conduct was not credible. Compared to that of other credible witnesses on behalf of the Employer, the FWC found that the employee did in fact say the words alleged to his colleague during the argument.
The FWC stated that regardless of whether swearing in the workplace was commonplace or tolerated, the words used by the employee went far beyond as such and fell squarely within the definition of serious misconduct as defined by regulation 1.07 of the Fair Work Regulations 2009 (Cth). The FWC went on to note at [107] (emphasis added):
“Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome and such conduct opens the Respondent to a failure of its duty to provide a safe place of work for its employees.”
The FWC found that the employee’s conduct was of serious gravity and in the face of credible evidence to the contrary, the employee failed to admit his own actions and left the Employer with no confidence that such conduct would not occur again. Therefore, the FWC was of the view that the employee created an untenable situation inconsistent with the continuation of the employment relationship.
In this regard, the FWC held that the dismissal of the employee was not harsh, unjust or unreasonable and dismissed the application.
In December 2022, the new positive duty on employers to eliminate workplace sex-discrimination and harassment commenced. This duty requires employers to take reasonable and proportionate measures to eliminate, as far as possible:
As illustrated by the FWC’s comments in this decision, this duty includes responding promptly and proportionately to allegations of sexual harassment or inappropriate behaviour which may create a hostile work environment and taking appropriate action, including disciplinary action.
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