A Commission has ruled that a police officer with 23 years’ service was not unfairly terminated after he had repeatedly asked a colleague to go out with him. The officer’s conduct occurred despite him having previously been warned about an earlier sexual harassment incident.
The senior constable had been demoted from sergeant and had been put on a performance management plan some 12 months prior to his dismissal due to a sexual harassment incident in which inappropriate comments had been made to a female colleague. At the time, the officer was advised that he was at risk of being dismissed should his behaviour continue, and he was required to attend respectful and inclusive workplace training programs.
The senior constable was dismissed by the state’s police commissioner after he was found to have repeatedly asked a female colleague:
- “will you go out with me?”
- “will you have coffee with me?”
- if he could message her on her private phone number to which she repeatedly declined.
The senior constable also reportedly said to the same colleague “I should trip you over, so you fall onto this mattress” when they were moving an abandoned mattress in the police station.
In responding to the allegations, the senior constable admitted that he had asked his colleague out “maybe twice” for coffee as he was attempting to be friends. He denied that he had been disrespectful to his colleague or that he had engaged in conduct that could be construed as sexual harassment.
The senior constable further put forward that he may have autism spectrum disorder (ASD) and might “misread visual and verbal communication cues” as a mitigating factor. However ASD had not been formally diagnosed and no medical evidence had been put forward to support this claim until after his employment was terminated.
Post termination, the officer’s treating psychiatrist confirmed that he had "difficulty in his reading of subtle social cues" and that his mild condition was relevant to how he interacted with colleagues.
Despite this, the Commissioner rejected the unfair dismissal application on the basis that:
- the senior constable’s response to the allegation changed over time
- the complainant and witnesses were credible and had nothing to gain by making up the allegations, and
- the evidence fell short of establishing that the condition caused him to sexually harass after he had previously been demoted and warned for similar conduct.
If you have any questions require advice or assistance with responding to an unfair dismissal claim, or should you require 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.