Summary
A service technician assigned at a remote iron ore mine site groped the breast of and pursued two young female cleaners. One of the female cleaners left the worksite declaring that it was too unsafe to return. An external investigation found the women’s complaints substantiated. After the external investigation, the management of the mining company invited the service technician to a show cause meeting. He was later summarily dismissed for serious misconduct.
A 58-year-old mining technician started working for a mining firm in Western Australia in 2018. On 19 June 2021, he had just finished a 12-hour shift.
Mine technician stood down because of allegations of sexual harassment
The next day the technician reported for work but he was directed to see the superintendent who informed him that he was being stood down because he was under investigation and should stay in his room. Later, he flew home. He called his supervisor and the superintended to ask them what was going on. He was told that he would be contacted by Human Resources.
Human Resources informed him on 15 July 2021 that there were two allegations against him for sexual harassment involving two separate incidents and two separate complainants. He received an email detailing the allegations.
The technician denied all these allegations when he called Human Resources. Human Resources asked him about the second allegation that had occurred in January 2021. He denied this allegation as well and said that no incident such as that had been brought to his attention and at that time, he would have been immediately reprimanded and dealt with if the allegation had been true. As it was, 6 months had passed and he was only being told about it then.
Technician resigned, resignation was refused
The investigation was referred to a third-party investigator. On 23 July 2021, the technician resigned from work citing the mental stress and anxiety at being left in the dark about the investigation. The superintendent refused to accept his resignation.
On 12 August 2021, the superintendent called to inform the technician that the allegations against him had been substantiated and that they had already decided to terminate him. He received a show cause letter on 16 August 2021 directing him to provide a written response within 2 days.
Instead of attending the meeting and providing a response to the show cause letter, the technician sent his superintendent a text message informing him that he had been treated unfairly and had been found guilty from the start. He felt falsely accused and had never been contacted by the investigator.
On 17 August 2021, HR called to ask him to submit a response to his termination. He sent them a text message saying he was confused as to why he was being asked to respond after he had already been terminated for sexual harassment. He believed he was falsely accused which was why he handed in his resignation letter. He received a termination letter on 19 August 2021. He filed an unfair dismissal application with the Fair Work Commission.
The evidence of the first cleaner in January 2021
At the trial, a female mine cleaner testified that she was new to the mining site but had made some friends and hung out at the bar in the mining site where she met the technician, but knew him only by his first name. The technician hung out at their table and then, on one occasion in January 2021, as she was coming back from the bar, the technician approached her, gave her a tight bear hug that pinned her arms to the side and told her “I’m going to fuck you so hard.” She mouthed to a few miners “help me” but they just laughed. She struggled and finally pushed the technician away.
Then she went back to the table with her friends and told them. They then told her that the day before, the technician had asked them if they thought she would go out with him, and they told him to back off. After that, the technician still tried to hang out with them at the table, but the cleaner glared at him and asked him to leave. He tried to talk to her and she told him to leave. She thought he eventually got the hint and stopped hanging around the tavern with them.
First cleaner did not report the incident immediately
The cleaner had not reported the incident because men accosted women frequently at the mine site. She tried to brush it off like her friends did when incidents like that occurred because it happened regularly, but it was unwanted behaviour that was of a sexual nature. She only decided to lodge a complaint against the technician in June 2021.
A second cleaner approached the first cleaner
At that time, another cleaner had approached the first cleaner. The second cleaner seemed upset. The second cleaner told the first cleaner that she had been cleaning near the technician’s room when the technician groper her.
Then, the technician took her phone and put his number in the phone. They compared stories and the second cleaner said she wanted to report the incident. The first cleaner said that she would back her up and also report the incident that had occurred to her in January. The first cleaner found the technician creepy.
First cleaner finally reported the incident
The next day, the first cleaner was called to the office, given an incident form, and told to fill it out and sign it. Weeks later, she received a call from the Human Resources of the mining company informing her that they were investigating the incident she had reported. The first cleaner told the HR what had happened.
Her motivation in filing a complaint
She had finally decided to report the incident when she’d heard that the technician had done this to another cleaner. If it had only happened to her, it might not have been a big deal but after hearing how it had happened to another girl, the first cleaner could not remain silent as the technician might keep doing it to others. The first cleaner was only 21 years old.
The evidence of the second cleaner in June 2021
The second cleaner complained that she was hired in December 2020 to provide cleaning duties and kitchen duties at the mine site. In June, she was assigned to do housekeeping duties in the employees’ accommodations. She had just finished a block of employee’s rooms and she was then doing her end-of-shift checklist. An employee approached her, and the technician’s name was printed on his work uniform, which was how she had identified him. She had never spoken to him before but she’d seen him around the village.
Invited the second cleaner to his room
The technician had a six pack of beer in his hand and he was drinking one. He spoke to her, telling her that he’d never seen her before. She had tried to be friendly but she was tired and she just wanted to finish work. He stood so close to her that she smelled the alcohol on his breath. The technician asked her to come to his room for a drink but she declined politely.
Made inappropriate remarks to her
Then the technician told her that as a housekeeper, she must have seen things she didn’t want to see. And then made comments that the cleaner found gross and inappropriate.
Groped her breast
Then the technician said that he had lost his phone. He asked to use her phone to ring his phone. The first cleaner then tried to leave but the technician blocked the path. She tried to go around him, but he reached out and grabbed her left breast.
It was not an accident because he clenched her breast tightly. She was petrified, and she felt violated and disgusted. She barged past him and cried. She signed out for work and asked one of the security guards to drive her by buggy to her room.
Called her on her phone repeatedly
That night, she was surprised to get calls from a number she did not recognise. She did not answer. Then when she checked the call log the next morning, she saw that this was the same number that the man had given to her. She called her father and told him what had happened.
Second cleaner reported the incident immediately
That morning, she went to see her manager and reported the assault. She was shaken and upset but she wrote out the incident in a statement. She was assigned a housekeeping buddy so that she wouldn’t have to work alone.
Feeling unsafe, she never returned to work
The cleaner was contacted by the mining company to who she related what had happened. She was sent home and flew off site later that day. She did not return to the site even after the technician had been removed, as she did not feel safe. She admitted that she had discussed with the first cleaner about what to do before reporting the incident. She was only 18 years old when the incident had occurred.
Technician’s evidence comprised only general denials
During the trial, the technician agreed that he had been trained in the Code of Conduct and Charter Values. He knew he was expected to abide by them and that unwelcome physical conduct made people uncomfortable.
He admitted that he was a regular patron of the mine site tavern where he drank alcohol and chatted with other employees and contractors.
He admitted being rostered to work in the mine site between 14-21 January 2021. He denied having approach any woman at the tavern, or hugging the woman. And if he had, he had not been told by the woman to stop.
He also denied having made a pass at the housekeeper in June 2021. He denied having beer in his bag or holding an open beer can in his hand whilst speaking with the housekeeper. He finally denied inviting the housekeeper into his room to have some beer with him.
Findings of the FWC
The Fair Work Commission accepted the testimonies of the two cleaners because it was inconceivable that they invented their stories. The FWC also found that the technician did say inappropriate words of a sexual nature to the two women and that he had groped the breast of the second cleaner and bear-hugged the first cleaner.
The technician’s words and actions constituted sexual harassment and sexual harassment amounted to serious misconduct. The actions and words of the technician also violated the mining company’s code of conduct which the technician was duty-bound to comply under his employment contract.
Dismissal neither harsh nor unreasonable or unfair
The mining company then, had a valid reason for terminating the employment of the technician. He had been informed of the allegations against him, and he had been provided with the opportunity to respond to the allegations which the technician refused.
He had been invited to attend a meeting related to his dismissal to provide a response as to why he should not be dismissed but the technician refused this opportunity as well. The FWC was satisfied that his dismissal was neither harsh, nor unjust nor unreasonable. The application for unfair dismissal was dismissed.
Source:
Dean Dunlop v BHP Billiton WAIO Pty Ltd T/A. BHP [2022] FWC 790 (11 April 2022) https://www.workplaceexpress.com.au/files/2022/19BHPyandi.pdf
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