Sexually harassing conduct weighs against harshness of dismissal

A council worker was hired to work as a school crossing supervisor in March 2009. He was one of 108 school crossing supervisors employed by the council. He had been working for three years at the school crossing near a primary school.

Incident of 12 March 2021

Request to touch the teacher’s hair. A teacher who worked at the after-school program at a primary school commenced her work at 3.00 pm and often got off the bus at the school crossing. As she passed the school crossing, the crossing supervisor commented that he liked her hair curly and he liked it better than when she wore it straight. He then asked the teacher if he could bounce one of her curls.

Staring at her chest. While the teacher was uncomfortable with the request, she allowed him to touch her hair so that she wouldn’t seem rude. The crossing supervisor touched her hair and as he did, his eyes wandered to her chest.

Comments of a sexual nature. She wanted to cross immediately but the traffic lights had not yet changed. The crossing supervisor then asked the teacher what she would be doing on the weekend and she replied she’d be gardening. And then the light changed and the teacher crossed. At that point, the crossing supervisor made inappropriate comments. She laughed off the comment but she felt violated.

Formal complaint

When she reached the primary school, she reported the incident to her manager. The manager called the city council and the city council advised the teacher to file a formal complaint. At that time, the teacher knew the face of the crossing supervisor but she didn’t know his name. A business support officer for the council helped the teacher identify the crossing supervisor.

Stood down and investigated

The city council then stood down the crossing supervisor on full pay whilst the services of an external and independent investigator was engaged. An allegation letter was sent to him charging him of harassment of a sexual nature. A week later, the crossing supervisor was invited to a meeting with the Chief Executive Officer of the council.

The crossing supervisor’s lawyer demanded in writing that the council disclose the identity of the complainant and to desist from publishing defamatory comments against the crossing supervisor. The council then confirmed that the investigation will be confidential.

A week later, the crossing supervisor was invited to a confidential meeting. He was cautioned not to discuss the matter with any other employee and was told to bring a support person if he so wished. At the meeting, the crossing supervisor was reminded of the Employee Assistance Program. He was also reminded that if the allegations against him were proven, it would constitute a breach of the Code of Conduct and the Equal Opportunity Policy.

Investigation by an external investigator

The external investigator attempted to contact the crossing supervisor. When a telephone meeting was arranged for 6 May 2021, the crossing supervisor spoke over the investigator and would not let her speak. The investigator then told him to take the opportunity to respond to the allegations and that he may do so in writing.

No cooperation with the investigation

On 21 May 2021, the applicant sent the investigator a text message denying that he made any personal contact with anyone whilst working as a crossing supervisor nor did he make personal comments or hold any form of conversation with anyone.

The investigator then replied to the crossing supervisor to confirm whether the text message was his response to the allegations and whether he had further information to provide. There was no reply from the crossing supervisor. The investigator then concluded that on the balance of probabilities, the crossing supervisor engaged in the alleged conduct in breach of his responsibilities under the Code of Conduct. She also found that the conduct may constitute sexual harassment.

Show-cause letter

Upon receiving the findings of the investigator, the human resources manager for the council recommended the termination of the crossing supervisor. The crossing supervisor was called to a disciplinary meeting to inform him that the investigation had been completed and that a preliminary decision had been made to terminate him. However, the crossing supervisor was provided an opportunity to show cause why he should not be terminated.

Response to the show-case letter

Allegations of procedural unfairness. In his response to the show-case letter, the crossing supervisor asserted that the Human Resources Manager was bent on having him dismissed even after he had informed her that the external investigator was only interested in his name and personal details and never gave him the opportunity to speak. The crossing supervisor also alleged that the investigator never presented the allegations to him and the decision to dismiss him was a pre-determined outcome.

Long employment history and good performance. He then pointed to his employment history of 10 years working permanently at a part-time position for the council and as a reliever prior to that. And in all the 15 years of working for the council, this was the first ever complaint made against him. To dismiss him at this point would be unfair. He thought it unfair that he had not been given anonymity whilst the accuser was given anonymity.

Terminated for violation of code of conduct and anti-sexual harassment policy

After consideration of the evidence from the investigation, the recommendation of the investigator and the responses of the crossing supervisor, and the recommendation of the Human Resources Manager, the council terminated the employment of the crossing supervisor because the complaint against him was substantiated and his actions constituted inappropriate conduct being unwanted physical contact and making inappropriate comments of a sexual nature. His actions violated the code of conduct and the equal employment opportunity policy and breached his obligation to the council to abide by the council’s zero-tolerance for sexual harassment in the workplace, its directive to treat others with respect, and to avoid situations that may be perceived as inappropriate. Most importantly, the conduct of the crossing supervisor had the potential of doing serious damage to the council’s reputation.

All attempts of the council to speak with the crossing supervisor to invite him to a meeting or make him aware of the findings, the outcome and the decision of the council, were ignored. All invitations for a meeting to provide him the termination letter were also ignored. A copy of the termination letter was couriered to the crossing supervisor.

Allegations not fabricated: dismissal not unreasonable

The Fair Work Commission found that the allegations against him were specific: the crossing supervisor worked at that crossing near the primary school at around 3.00 pm on the date in question; the teacher arrived for work at around that time; while the teacher did not know the crossing supervisor’s name, she described that he rode his bike to work, described his physical features as olive skinned short and squat, and estimated his age to be around 50-60 years of age. None of these were disputed by the crossing supervisor at any time. She went through the trouble of telling her supervisor, writing out her complaint, participating in the investigation, and was fairly consistent in her testimony. The Commission did not find her allegations to be mere fabrication.

No procedural unfairness: dismissal not unfair

The Commission found that the actions of the crossing supervisor constituted serious misconduct and constituted a valid reason for his dismissal. The council informed him of the allegations against him in plain and clear terms. He was allowed the opportunity to provide a response to the allegations. He was given the opportunity to participate in the investigation. And when a preliminary decision to dismiss him was communicated to him, he was given an opportunity to show cause why his employment ought not be terminated. And all the reasons relied upon for his termination were communicated to him in a termination letter.

Dismissal was not harsh

The crossing supervisor was not a young man and there had been no issues with his previous work performance. More importantly, during the pandemic, it would be difficult for him to find alternative employment.

However, these factors must be weighed against the type of behaviour he displayed. There can be no tolerance of any inappropriate conduct directed towards co-workers or towards the members of the public. The factors of the crossing supervisor’s past work performance, age, and employment prospects cannot outweigh the valid reason for and procedural fairness that characterised his termination.

The application was dismissed.

Source:

Rolando Locastro v City of Darebin [2021] FWC 6656 (23 December 2021)

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2021/6656.html

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