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FWC upholds sacking of employee who ‘stalked’ colleague

THE Fair Work Commission has upheld bus operator Murray’s Australia’s dismissal of a male employee who stalked and harassed a female colleague by sending repeated unsolicited and inappropriate text messages.

The company dismissed the man after investigating allegations his behaviour breached the company’s equal opportunity, discrimination, harassment, bullying and workplace violence policy.

The employee lodged an application with the Commission alleging his termination was harsh, unjust and unreasonable.

Section 387 of the Fair Work Act sets out the factors the Commission must take into account in determining if the dismissal was unfair.

Vice President Graeme Watson found the version of events contended by the dismissed employee conflicted with the victim’s account and were dishonest.

He found the man “did engage in conduct that is dealt with in the allegations subject to the investigation”.

“I find that he sent repeated unsolicited text messages,” Watson VP said.

Evidence was also raised that the man had engaged in actions and comments with other workmates and individuals that were “clearly inappropriate”, however were minor when compared to the complaints made by his female colleague that eventually led to his sacking.

The Commission also investigated whether Murray’s gave the man an opportunity to respond to concerns about his conduct and received a warning.

It was concluded that he was given a warning and his “subsequent behaviour was totally inconsistent with the warning”.

“I consider that the misconduct was extremely serious.  It is especially serious given that he was warned to stop the behaviour and the conduct was clearly inappropriate and amounted to harassment of a fellow employee in a totally inappropriate manner,” Watson said.

“Having regard to all of that evidence, I find that there was a valid reason for [the employee’s] dismissal and it related to his conduct and the health and safety of other employees, particularly [his colleague].

“I find that the dismissal… was a proportionate response to the conduct that was found to exist.”

Click here to read the full decision.

Implications for employers

This case demonstrates that despite the FWC often taking inconsistent approaches to unfair dismissal, employers stand a very high chance of successfully defending a claim by working through a ‘best practice’ approach to managing disciplinary and termination issues.

In this example, the employer was found to have properly investigated the complaints and thoroughly warned the former employee that his behaviours clearly breached company policies.

Further, an interview took place where the employee was allowed a support person and offered an opportunity to provide a statement in reply to the allegations put to him regarding his conduct.

It is also encouraging that in this case, the FWC placed significant weight on community expectations regarding inappropriate and harassing behaviour, in making its decision.

AREEA’s workplace and legal consulting team are experts in conducting workplace investigations, managing disciplinary and termination processes, and representing employers in the Fair Work Commission in the event of an unfair dismissal claims.

For information on how we can support you in your workplace, contact your local AREEA office.

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