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Employee reinstated in breast case scenario

The NSW Industrial Relations Commission has ruled that a public servant who admitted to touching five of his colleagues breasts’ at a work Christmas function should be reinstated to his position.

The evidence in the case included that the a public servant had consumed a considerable volume of alcohol before attending a workplace function and was dismissed after he allegedly touched the breasts of the women. During the hearing it was also found that the employee had divulged confidential information to one of the women.

Relevantly, after the incident was reported to a manager at the function, the manager reacted by saying ‘That’s ok. We’re gay’.  The manager then immediately reached out and touched 2 of the same women on the breasts.

The actions of both employees were investigated. The manager denied the allegations against him whilst the employee admitted to the conduct at his earliest opportunity. Even though the allegations were proven against both employees, the disciplinary action taken against them differed, with the manager only being demoted while the employee was dismissed.

This was ultimately critical to the finding of the Commission, where it was concluded that:

“… I find, having made the above comparisons, that the penalty of dismissal meted out to the [employee] was harsh when assessed against the penalty meted out to [the manager].”

Having found the dismissal was harsh, the Commission then discussed the number of other disciplinary actions that were available to the employer, and ruled that a combination of other disciplinary actions would have best suited the circumstances, as opposed to dismissal. The Commission subsequently ordered the reinstatement of the employee and set alternative disciplinary measures for him.

Key Lesson: Consistency of treatment and taking into account an employee’s length of service and unblemished record are all relevant considerations when deciding upon appropriate disciplinary action. Despite the serious nature of the employees’ conduct, the action taken by the employer in this case was considered harsh as a result due to this failure.

Lisa Aitken is an accredited specialist in workplace relations law and the principal 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.

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