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Supervisor fairly dismissed for indecently exposing himself… twice

A wholesale floristry company has successfully defended the unfair dismissal application of a former supervisor.

The Fair Work Commission heard that in March 2017, the Supervisor was involved in two incidents, six days apart.  In the first incident, two employees advised the Employer of an incident where the Supervisor had “unzipped his pants, removed his penis, and shaken or waived his penis at them”.  The employees were advised to complete an incident report.

Six days later, two other employees advised the Employer that on the previous afternoon, the Supervisor had again allegedly “unzipped his pants, taken out his penis, and shaken it or waived it in the direction of one of the employees”.

An investigation was commenced, with statements taken from each of the witnesses.  The Supervisor was stood down with pay during the investigation.  Allegations were provided to the Supervisor and he was invited to respond in writing.  The Supervisor clearly denied the conduct.  Critical to the investigation was CCTV footage that seemingly supported the allegations against the Supervisor in the second incident.

Ultimately, the Employer found the allegations to have been substantiated.

Following a show cause process, and a rejection of the responses from the Supervisor, termination occurred.  Whilst the Employer believed it had a basis for summarily dismissing the Supervisor, it chose to terminate him with notice.

Commissioner Cambridge discussed the evidence in detail, and particularly the CCTV footage.  The Supervisor denied that he engaged in the conduct, saying that whilst he might have made a rude gesture, he did not expose himself.  Commissioner Cambridge accepted the evidence of the employer’s witnesses over that of the Supervisor, finding that he could not accept the Supervisor as a witness of credit.

Commissioner Cambridge dismissed the application, finding that there was a valid reason for the termination, and further commented that the conduct would have been a valid reason for summarily dismissing the Supervisor (rather than terminating with payment of notice).

Lessons for Employers

There is no doubt that employees can exhibit some bizarre behaviours in the workplace.  Employers need to ensure no assumptions are made that alleged behaviours have occurred, and ensure a thorough investigation, before making a decision on findings and then disciplinary action.

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