Anyone who has had their nipple twisted in a schoolyard prank knows that it’s no laughing matter. And regardless of the precise nature of the behaviour that has landed Olympic champion Grant Hackett in an unforgiving media spotlight this week, there is no humour to be had in the predicament he now finds himself in. His victim, more’s the point, is not smiling either.
Harassment, sexual or otherwise, has no place on a crowded aircraft. It also has no place in the workplace. No employer should look kindly upon such behaviour, and if media reports are to be believed, Hackett’s indiscretion has already seen him dropped cold by at least two prospective employers.
There is no shortage of recent history where similar invasions of personal space have proven costly for their perpetrators. And as if to provide some symmetry, a recent example involved a pilot.
A senior Qantas First Officer, with an impeccable 20-year record of service, was sacked in May 2014 after being found to have inappropriately touched the breasts of his female Second Officer while in a taxi during a night out with his flight crew.
Clearly under the influence of more than one substance, and suitably remorseful after the fact, he argued he was the victim of drink spiking. Unfortunately, however, the Fair Work Commission (FWC) did not agree when assessing his claim for unfair dismissal.
“I have great sympathy for a person in circumstances where their unblemished long-standing career has been decimated as a result of one bad decision,” said Commissioner Ian Cambridge. “However, any personal sympathy does not negate or diminish the seriousness with which the employer was entitled to treat the misconduct of the applicant.”
That misconduct, the Commissioner held, was magnified to a degree given “the standards for personal responsibility are very high in the case of an occupation such as a commercial pilot”. But the case has not ended there, with the applicant pursuing his claim all the way to the Federal Court, which in February agreed to refer the case back to the FWC for appeal.
Another recent case has further illustrated circumstances under which employers are entitled to take a serious interest in the behaviour of their employees when ‘off duty’.
While on a work trip, an employee was accused of groping the backside of a barmaid while drinking after-hours in his employer-provided hotel – a hotel with which the employer had a longstanding arrangement to regularly accommodate its employees. The incident was witnessed by another bar worker and the employee was subsequently dismissed, primarily on the grounds of bringing the employer into disrepute.
In staking his claim for unfair dismissal, the employee disputed the alleged misconduct. But he argued that, even if it did occur, the conduct was unrelated to his employment as it took place outside of working hours and the victim was not employed by his own company.
The FWC’s decision drew on a seminal case, Rose v Telstra (1998), which established that an employee’s out-of-hours or off-site conduct may be a valid reason for termination of employment if it is likely to cause serious damage to the employment relationship; would damage the employer’s interests; or is incompatible with the employee’s duties.
“To cut to the chase,” Commissioner Danny Cloghan said, “the only reason the Applicant was in the hotel at the time of the incident was because of the employment relationship he had with the Employer.
“I am satisfied that the Employer was entitled to treat the Applicant’s actions as serious, not only because of its relationship with the hotel but the potential damage to its reputation more broadly.”
And furthermore, the Commissioner stated that the hotel worker “has a right to carry out her work without being touched on the bum by a hotel patron” – regardless of who they worked for.
It’s clear that the FWC views misconduct of this type very seriously – but employers should be aware that their management of such complaints is equally subject to close scrutiny.
Take the case of a NSW Public Servant who was fired after groping the breasts of five women at his work Christmas party – an event at which the nexus with employment could hardly be in dispute.
Again, alcohol was a contributing factor, and the employee apologised to the women, saying “he had not intended to offend (them) and that what he did, as a gay male, was in good humour”. Regardless, after a lengthy investigation he was found guilty of misconduct and dismissed from the public service.
In considering the resulting unfair dismissal claim, NSW Industrial Relations Commissioner Inaam Tabbaa agreed that the employee’s conduct was “deplorable, unsolicited and had the potential to undermine the integrity and reputation of the Department”.
But the case turned on a point of consistency: at the same event, a more senior manager had also been found guilty of similar misconduct – with a smaller number of women – and been demoted rather than dismissed.
“Quantity is not the issue – it is one woman too many,” said Commissioner Tabbaa. “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.”
Despite these sentiments, the penalty of dismissal meted out to the Applicant was ruled harsh when assessed against the lesser penalty afforded to his senior colleague. He was reinstated to his previous position, with a ‘final warning’ letter placed on his personnel file, and directed to participate in equal opportunity and sexual harassment training.
While there is no shortage of cases upholding employer decisions to dismiss employees who engage in physical harassment and violate personal space, how an employer handles events of this nature and what policies they have in place can often determine whether or not they will be vindicated by the Courts in removing the offending employee from the workplace.
“I have no doubt that the applicant has been humiliated and embarrassed by his actions at that function and will live with the consequences for a long time to come,” Commissioner Tabbaa said – expressing a sentiment Grant Hackett will likely come to appreciate.
Should you require any advice on this subject, please contact Emma Howden, Ai Group’s National Manager – Workplace Training and Events.
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