Loose Lips Sink … Employees by Kate Ausden

Kate Ausden Blog

An employee, who had already received two written warnings for his performance, made slanderous and profane comments about women while at work.

He offered to kiss a colleague, “fuck” the sister of another colleague and made other remarks, which were lewd and/or sexual in nature. The employee denied making the comments to his colleagues.

After several complaints were made, the employer suspended the employee and investigated the complaints. Following an investigation, the employee’s employment was terminated and the employee lodged an unfair dismissal claim with the FWC.

The standard of proof applied by the FWC, when deciding issues of fact, is whether the misconduct alleged occurred on the balance of probabilities.

Commonly, the only witnesses in sexual harassment cases are the alleged victim and alleged perpetrator. The success or failure of these cases are all too often determined by the relative strength or weakness of witnesses evidence and, by extension, their credibility.

As the employee had denied making any comments (and, as no third party was present to verify the matters alleged) the FWC made certain preliminary observations about the employee’s conduct in Court, including that he used “language at the foulest end of the profanity spectrum, “gesticulated aggressively” in Court, he was “often smirking and scoffing” at the statements of others and he alleged he was illiterate, while appearing to read documents in Court. The FWC concluded, given the employee’s conduct in Court, that he was not an impressive witness and, by conclusion, unlikely to be believed.

As the other witnesses appeared reliable and, the employer’s conduct in all other respects did not breach the matters specified in section 387 of the Fair Work Act, the employee’s unfair dismissal claim was dismissed.

It’s important that employers be persuaded that misconduct has occurred, on the balance of probabilities (rather than having a reasonable belief that it may have occurred), before terminating an employee’s employment.

Peter Heeson v Vegco Pty Limitred T/A One Harvest [2019] FWC 1664 (14 March 2018)