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After-hours threat made by manager constitutes serious misconduct

A manager has been found to have engaged in serious misconduct after threatening to touch a female colleague’s vagina.

The conduct occurred at a team building event. During the event, the Applicant (a manager) is alleged to have become aggressive towards a female colleague.  One of the other the employees who witnessed the Applicant’s conduct intervened and told the Applicant that his conduct was inappropriate.

It was then alleged that after the work function, the Applicant and another female colleague got into a taxi and the Applicant began to criticise some work matters.  When the female employee defended the employer, the Applicant said to her that she should “be quiet or I’ll touch your vagina like everyone else has done tonight.”  The female employee felt “disrespected and degraded” by the comment.  The female employee complained to the Applicant about his comment and the Applicant tried to justify his conduct by saying another employee had spoken to her like that.

The Applicant was eventually terminated for serious misconduct as a result of this incident.  Further issues relating to the Applicant’s misuse of his position were discovered after the dismissal.

The Applicant commenced an unfair dismissal claim.  He disputed a number of the facts alleged by the Employer.  He said that the comment he made to the female employee, was a joke based on an earlier interaction in the night where another employee leaned across the female employee, and she had declared that employee had touched her vagina.  This incident was denied by the female employee and was not accepted by Commissioner Roe as fact.

In his decision, Commissioner Roe was scathing of the conduct of the Applicant, stating:

“Given [the Applicant’s] relatively senior role, his gender, that the comments were made in a work context (a team building event paid for by the company), the absence of any provocation, and his relatively short period of service I am satisfied that the comments made constitute a valid reason for dismissal. The comments are extremely offensive and threatening. They are a threat by a senior male employee to commit a violent assault on a female colleague…”

The Applicants unfair dismissal application was dismissed.

 Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.