The New South Wales Industrial Relations Commission has decided 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 employee had consumed a considerable volume of alcohol before attending a workplace function with a number of his work colleagues, some of whom were also social friends of the employee. In his evidence, the employee admitted that he was intoxicated at the work function and that his level of intoxication had affected his level of judgement.
During the course of the function, which took place at a local hotel, where other public patrons were also drinking, the employee allegedly touched the breasts of five separate women. The employee admitted to the conduct although he did initially assert that he had consent from those women to touch their breasts. The women who were interviewed denied having given the employee consent. In cross examination, the employee admitted that the better view was that he did not have consent from the women to touch their breasts.
During the hearing it was also alleged that the employee had divulged confidential information to one of the women to the effect that she had not been successful in her application for a position on a tribunal.
Following the groping incident, which was witnessed by a number of the employee’s colleagues, one of the witnesses to the conduct was having a conversation with one of the Department’s managers, together with two of the women who had been groped by the employee. During that conversation, the witness mentioned to the manager that the employee had touched the two women’s breasts and that the conduct was ‘not on’. To the witness’ surprise, the manager’s reaction was to say ‘That’s ok. We’re gay’. The manager then immediately reached out and touched each of the women on the breasts. Relevantly, the manager was the direct manager of one of the women.
In what was an extremely drawn out investigation and decision making process taking more than 12 months from the date of the allegations, the Department found that the employee was guilty of misconduct. He was directed to resign and when his resignation was not forthcoming, he was then dismissed by the Department. It is important to note that the employee was not suspended for this period and continued to perform his duties for the entire period of the investigation.
The manager’s conduct was also investigated, and whilst he denied the allegations against him, the evidence of the women was accepted and his discipline consisted of demotion from the position that he previously held.
In the hearing, the factual matters around the events of December 2012 were not contested.
Commissioner Tabbaa agreed that the employee’s behaviour was not predatory, however she also said that the conduct of both the employee and the manager was ‘deplorable, unsolicited and had the potential to undermine the integrity and reputation of the Department’.
The Commissioner held that the fact that the employee had touched five women’s breasts, whilst the manager had touched only two women’s breasts was insignificant, stating that ‘it was one to many’.
She also stated:
“Being gay does not excuse such unwarranted behaviour. In this day and age it goes without saying that one does not invade the space of another person or touch another person without permission. In any event, even if permission was given, it should not occur in the workplace or any function associated with the workplace.”
The Commissioner cited that relevant to both the employee and the Manager’s punishment was the fact that both were employed to undertake human resources functions within the Department.
It appears from the facts that all the women bar one did not take issue with the employee’s conduct in terms of finding the conduct offensive or humiliating. The woman who made the complaint was embarrassed by the conduct of the employee, but as the manager was her direct manager, she saw his conduct as much more serious.
The Commissioner noted that the employee was deeply remorseful and ashamed of his conduct and provided three personal references in support of his assertion that the conduct at the work function had been out of character for him. The Commissioner also noted that he had a clean personnel file and performance record. Further, the employee had conceded the inappropriate nature of his conduct at the first opportunity that he had. This was contrary to the actions of the manager who had denied the allegations.
Even though the allegations were proven against both employees, the disciplinary action taken against them differed, with the manager only being demoted. On this point, the Commissioner stated:
“… 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]. I have no doubt that the [employee] has been humiliated and embarrassed by his actions at that function and will live with the consequences for a long time to come.”
Having found that the dismissal was harsh, the Commissioner
turned to consider whether reinstatement was practicable in the circumstances. The Commissioner ruled that it was not impracticable:
“I find that reinstatement of the Applicant is not impracticable given that – Firstly, the Applicant continued to perform all the tasks associated with his role during the 12 month period between the incident and the date of termination, including the performance of recruitment functions, convening of panels, representing the Director of Court Services on the Right to Dignity at Work Steering Committee and the Equity and Diversity Alliance Group; and
Secondly, the Applicant has, since the incident, maintained a cordial relationship with Ms I, Ms K, and Ms DB. He has very limited contact with Ms B as she is working at a suburban court. Finally, his former position does not allow for much contact with Ms G.”
The Commissioner then discussed the number of other different disciplinary actions that were available to the Department, and ruled that a combination of other disciplinary actions would have best suited the circumstances, as opposed to dismissal. The Commissioner subsequently ordered the reinstatement of the Applicant on the following terms:
- His rate of pay shall be on the base increment of a clerk 7/8; and
- His salary shall recommence from the date of reinstatement and no back payment shall be made for the period from his dismissal to the date of reinstatement,
and subject to the following:
- A final warning letter is to be placed on his personnel file. The warning would include a provision to the effect that any future breach of that Code or policies may constitute a proper basis for summary dismissal;
- A written apology is to be forwarded by the employee to the five women affected by his conduct;
- His participation in EEO/Sexual Harassment training as soon as practicable upon his resumption of work; and
- A written undertaking be provided to the employer regarding compliance with its Code of Conduct and Ethics and Dignity and Respect Policy.
Lessons for Employers
There are a number of key messages from this case:
- It is vital for an employer to apply their disciplinary policy consistently across all employees. Treating employees differently when their conduct and history is manifestly the same can create an argument for the employee who is worse off that their level of discipline was unfair.
- A timely response to a workplace incident is critical. The longer an employer takes to conclude a workplace investigation, particularly where the employee has been allowed to continue in their role, makes it difficult to justify termination of employment.
- Alcohol and work functions are a recipe for harassment claims. Employers should reinforce their policies to employees before any functions where employees will be served alcohol.
Lisa Aitken, Managing Partner