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Dismissal – Sexual/pornographic issues

Dismissal – Sexual/Pornographic issues

Contact kiddlrs@optusnet.com.au for recent 2014-2015 case summaries and for trial of full product.

[2010] FWA 7846 Vic Lambert v ZTE (Australia) P/L (relevance of worker’s subsequently discovered (i.e. post-dismissal) sexualized chat room discussions and images on work/home computer whilst off work and during work time considered – images would not have been subject to any censorship classification or restrictions on their publication – A’s conduct, to the extent it may have been done at work, would have justified a warning – principles in Lane v Arrowcrest considered from paragraph 123 – “the subsequently discovered material does not provide a valid reason for termination but it could affect the length of likely future employment workhospitality.com.au in the event that termination had not occurred” @124 – “In making the decision to refuse to allow the new material I had regard to the nature of that material. The material did not in any way relate to the issue of whether or not there was a genuine keystonegate redundancy which is the main issue in contention in these proceedings” @114)

[2010] FWA 8011 NSW Rowland & Rollason v Austar Coal Mine P/L (dismissal not harsh etc when A’s drank on-site contrary to policy, and when they engaged in sexual harassment of another employee by exposing their genitals and drawing crude pictures)

[2010] FWA 8071 NSW Naden v ACM Group … (R dismissed A, a team leader, for allegedly breaching its sexual harassment policy by asking a female worker (S) in his team to ‘crack’ his back by standing on it to relieve his discomfort – A claimed that S volunteered to help him – the R dismissed A without even discussing the issue with S – S was not called to give evidence – other evidence corroborated A’s claim that S volunteered – dismissal harsh etc)

[2010] FWA 1822 Qld Green v MSS Security P/L (the A, who was a long standing employee of the R with a good record, made an inappropriate comment to his female supervisor about her giving him a ‘head job’ – A alleged the remark was made in the context of his poor hair cut many in the office were talking about – nevertheless A’s comment breached the R’s sexual harassment policy and A’s dismissal not found to be harsh etc)

[2011] FWA 1230 NSW Various applicants v Dairy Farmers Ltd (several workers who had been warned and who had been aware of the dismissal of other employees for sending sexually explicit emails were dismissed for doing the same – workplace had a strong culture of such conduct – dismissals not harsh etc)

[2011] FWA 5162 Vic Notman v Neway Transport (the A was dismissed for urinating in front of a female cleaner – such would have constituted valid reason for dismissal – however FWA found that A had only unzipped his trousers and then the cleaner left – A showed unacceptable disregard for her, but did not set out to deliberately humiliate her – A’s behaviour breached R’s policies and EA – procedural fairness granted to A – in light of A’s contrition, long service and good record dismissal harsh etc – no reinstatement or compensation ordered in light of A’s misconduct and him soon finding another job)

[2011] FWA 6144 WA Pritchard v Timberglen (the A made frequent inappropriate physical contact (hugging, kissing on the cheek and touching females around the hips or waist behind the bar, usually as he moved past them) with several females in his work place erialnumbers.ca over whom he exercised authority – no single incident was vulgar, but his conduct was serious because of its regularity – A was not given an adequate opportunity to respond to the allegations as they were anonymous – dismissal not harsh etc)

[2011] FWA 8554 Qld O’Brien v J Smith & Son (despite some deficiencies in procedure re effecting A’s dismissal, dismissal for falsifying records for a compensation claim and for exposing his genitals to a co-worker not harsh etc)

[2012] FWA 5390 Vic Margelis v Alfred Health (there was a valid reason for dismissing A, an IT worker, for “seeking to breach the Alfred’s IT policy by gaining access to his manager’s email accounts without authority” @202 – valid reason also due to A engaging in on-line conversation with another worker involving inappropriate sexual remarks about another worker – dismissal not harsh etc)

[2012] FWA 6291 NSW Flanagan, Hogan & Pitches (each A was summarily dismissed for breaching R’s email policy re inappropriate material, pornography in this case – although valid reason existed for their dismissals, there was insufficient evidence to show that they had received adequate training in R’s policies, and R failed to apply its policies correctly – during the investigation, they should have been warned their email boxes were being monitored – this, and the harshness of the consequences for these employees in a regional area combined to make the dismissals harsh etc – reinstatement ordered)

[2012] FWA 5012 Vic Rushiti v Australia Post (“The loss of trust and confidence in the Applicant appears directly attributable to the fact that the Applicant got caught sending offensive emails and that he admitted doing so. The Respondent appears to have discounted both the obvious regret of the Applicant for his conduct and his clear intention not to repeat such conduct as well as the fact that those employees who sent the offensive emails to the Applicant remain employed with the Respondent because they neither got caught nor made admissions … [Tribunal] satisfied that there can be and should be sufficient trust in the Applicant to make the employment relationship viable and productive. The likelihood of the Applicant accessing or sending offensive emails in the future would appear to be remote” @34-35 – Appeal allowed in [2012] FWAFB 7423 – Commissioner made erroneous factual findings – an inappropriate email which is identified as being associated with Australia Post has the potential to cause damage to Australia Post … [I]t is appropriate for an employer to establish policies against the dissemination of pornographic and sexually-related material in and from the workplace, and to take proportionate disciplinary action for breaches of such policies” @21-22 – issue of unfair differential treatment considered – none here)

[2012] FWA 7977 NSW Graham v Bankstown District Sports Club (the A was dismissed for sexually harassing a co-worker by teasing him about his virginity – R had relevant policies against such conduct – meaning of ‘sexual harassment’ considered – the conduct need not be intentional – A was not fully aware of the detrimental effect of his actions – dismissal not harsh etc)

[2012] FWA 9435 NSW Shoukry v The Star Pty Ltd (the A had been employed on an ongoing basis with R before he entered into a new contract of employment – A had been sending to colleagues’ work addresses pornographic emails before and after his new contract from his home computer and from his work computer – R “had the right to consider and, if appropriate, take action in relation to the applicant’s conduct prior to that contract” @101 – dismissal not harsh etc)

[2012] FWA 8762 NSW McMahon v Snowy Hydro Ltd (valid reason to dismiss A due to him using R’s computer system to send, receive and store pornography – “the employer’s lack of an email filtering system designed to catch the transmission of inappropriate emails does not diminish or excuse an offending employee’s culpability” @94 – A’s dismissal not unfair due to limited training re inappropriate computer usage – A’s failure to express remorse at wrongdoing until trial – differential treatment considered – A had 25 years service – dismissal not harsh etc)

[2013] FWC 6564 Vic Morrison v Yooralla Society (the A’s summary dismissal for inappropriate touching of a supported co-worker in his groin, and for inappropriate comments of a sexual nature to others not harsh etc)

[2013] FWC 5446 NSW D v Charles Sturt University (a lecturer was dismissed for serious misconduct, namely making advances of a sexual nature toward a student out of hours – dismissal not harsh etc)

[2013] FWC 8914 NSW King v Catholic Education Office Diocese of Parramatta (A was a teacher with the R college – A “was dismissed because he transported students in his car to surf lifesaving events contrary to the direction and policies of the College and the Diocese” @42 – A’s conduct was wilful – it was an out of hours activity, but the connection with employment was the students – “the Diocese and College policies were clear enough for the applicant to be very conscious of the child protection requirements of his position … [T]he clear intention is that teachers not transport students in their vehicles. Any exception would require express permission from a supervisor” @44-46 – valid reason for dismissal – A not adequately notified of reason for dismissal – FWC “would not have found that the procedural deficiencies referred to were sufficient by themselves to render the dismissal harsh [etc] … However … insufficient attention was given to the applicant’s long and dedicated service [37 years] … [and] the decision to dismiss, as opposed to other disciplinary action that could have been taken, was influenced by unrelated allegations in respect of which no Police action has been taken” @88 – dismissal harsh etc – reinstatement inappropriate as school had lost confidence in A (although there was no suggestion he would harm any of his students) – school had duty of care concerns in light of A not having followed directions – school was also under investigation generally re child abuse issues – A is almost 60 and unlikely to be reemployed again as a teacher on a permanent basis – compensation of $41,816 awarded – on appeal in [2014] FWCFB 2914 A unsuccessfully challenged the lawfulness of R’s directions as to his out of hours conduct – Full Bench did not consider “decision to refuse reinstatement and order instead a substantial amount of compensation … manifestly unjust” @42 – Appeal allowed as DP erred in failing to consider “the possibility of [A] being reinstated to another position in the Head Office or elsewhere in the Diocese that was not a teaching position and did not involve unsupervised interaction with students” @44 – several such positions existed – matter remitted to DP to determine this issue – R’s cross appeal challenging the finding that A’s dismissal was harsh etc failed)

[2013] FWC 9140 X v Commonwealth of Australia (the A, a team leader with a long and distinguished record with RAAF and Dept. of Defence, stored and sent various lewd and pornographic emails breaching R’s policies and the Australian Public Service Code – R had adequately informed A of policies and had been adequately trained in them – held that “material which he stored and forwarded … was not … of a character which was obscenely offensive. Nevertheless it was demeaning women, sexuality and gender. It contravened the Defence’s values and policies and had the capacity to embarrass Defence” @96 – A expressed remorse for his actions – A is 62 and the dismissal has had a profound effect on his lifestyle – in favour of the dismissal being unfair were the “inconsistencies in the Defence investigation process. Significant in this respect, are the delays in the investigation process or information to Mr X about that process and the extent to which Defence left Mr X in his Team Leader position when it was aware of his behaviour” @111 – dismissal found unjust due to procedural deficiencies, but not harsh or unreasonable – reinstatement inappropriate – 50% reduction in compensation for misconduct – 12 week’s pay awarded)

[2013] FWC 9642 NSW Little v Credit Corp Group Ltd (the A made inappropriate comments on his Facebook page about an organization R had dealings with – A also made sexually aggressive comments about a new employee of R – both actions amounted to a valid reason for dismissal – dismissal not harsh etc)