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Sexual harassment – How training helped an employer win an unfair dismissal case

In a recent edition we highlighted changes to the Fair Work Commissions powers to make stop sexual harassment orders. In addition to these changing powers, there continues to be an increased recognition within the community of the need to tackle workplace sexual harassment. The increased media attention surrounding many high-profile sexual harassment cases in recent years have led many employers to take a tough stance on such conduct in their workplace.

All employers have an obligation under health and safety legislation to eliminate risks to health and safety of workers and other persons so far as is reasonably practicable, and to provide and maintain a work environment that is without risk to the health and safety of workers. This includes a requirement to do all that is reasonably possible to manage the risk of sexual harassment occurring in the workplace.

In addition to implementing a zero-tolerance policy, employers need to ensure that comprehensive training is provided to both managers and employees regarding their obligations and that all staff are aware of, and understand, their obligations. The importance of such measures was recently highlighted in a case where the provision of sexual harassment training two months earlier helped an employer to win an unfair dismissal case.

In this case, a large financial services industry organisation summarily dismissed a senior manager with 35 years’ service for touching a female colleague’s backside at after-work drinks. The incident was captured on CCTV footage.

Despite having previously had an unblemished record, the manager was dismissed following an internal investigation being conducted into his behaviour. The manager brought forward an unfair dismissal claim which was found in favour of the employer. Given the very serious nature of the misconduct, the Commission held that summary dismissal was a reasonable penalty due to there being serious risks for the employer should that have failed to act on the employee’s poor behaviour.

While an employee’s length of employment can be factored into a Commission’s decision when hearing unfair dismissal claim, in this instance the manager’s unblemished and long tenure did not make the dismissal unfair. Rather, the impact on the employee, the need to protect the company from reputational damage, community expectations and standards around sexual harassment was found to mitigate against the termination being unreasonable and unjust.

In addition to the above factors, it was found that there had been only a small period of time between the manager having attended workplace training, which covered sexual harassment, and the incident occurring. This worked in the employer’s favour as the employee could not claim that they were not familiar with the company’s policies, standards and expectations.

While having policies in place about appropriate workplace conduct and providing regular training (including refresher training) will not prevent a terminated employer from challenging their dismissal on such grounds as being unfair, it will strengthen an employers’ ability to defend such a claim.

If you require advice or assistance with understanding your obligations in regard to preventing harassment from occurring in the workplace, or should you require training or support regarding any HR matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up to date at the time of reading. It is not legal advice and should not be treated as such.

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