This post is contributed by Workplace Conflict Resolution’s Legal Commentator, Tiffany Healy
There is a diverse range of personalities to manage in the workplace. In order to maintain a cohesive and harmonious working environment, it is in management’s best interests to recognise and celebrate this diversity. However, an employer’s tailored management approach towards their staff needs to also be tempered with requisite moderation.
Employers must also ensure they are consistent when applying the company’s policies and procedures and not show bias in their approach to managing inappropriate behaviour in their workforce. For example, disciplining employees is challenging at the best of times, yet when employers have not been even handed in the treatment of more than one wrong-doer in the workplace, they may equally find themselves in the wrong.
Two recent legal disputes have highlighted this issue and some of the key take-outs are listed below:
– Ensuring that grievance investigations are procedurally fair from the outset, including being unbiased and impartial; this approach will yield a far more valuable result and if required, be far more compelling evidence in court proceedings.
– When taking steps to discipline an employee, ensure that you are armed with the correct facts;
– Make sure that your reasoning for disciplining an employee or terminating their employment is fair, just, fitting and consistent with other wrong-doing.
– Be mindful of your biases; you cannot afford to be blind-sided or biased by your compassion for one party over the other, or influenced about individuals’ behaviours based upon perceived gender stereo-typing.
– Up to date policies and procedures are powerful resources and courts will sometimes look to these documents for further information gathering and direction.
– Know your rights as an employer – you have a right and an obligation to control the workplace.
Workplace Relationship Gone Wrong
In the first case, two colleagues had a consensual sexual relationship outside of work, lasting around two weeks. The relationship was subsequently ended by the applicant (male) via text message. A number of interactions ensued between the pair at work, aiming at trying to keep the relationship going; however, the applicant insisted the relationship was no longer and throughout this interaction, both parties used abusive and offensive language towards the other in the workplace.
Each party made a formal complaint about sexual harassment and inappropriate behaviour against the other at various times and each complaint was investigated. Ultimately, the report concluded that allegations of inappropriate and threatening behaviour against the applicant (male) were proven whilst allegations of sexual harassment against the colleague (female) were not proven and the applicant was then dismissed from his employment.
Commissioner Ryan of the Fair Work Commission considered whether the applicant’s dismissal was harsh, unjust or unreasonable as per s 387 of the Fair Work Act 2009 (Cth). Whilst it was clear that the applicant did use abusive language towards his colleague, this did not wholly provide valid reason for their dismissal. The Commissioner went on to explain that a ‘valid decision’ entailed a decision which was ‘sound, defensible or well founded’ and not one which was ‘capricious, fanciful, spiteful or prejudiced’.
Commissioner Ryan stated that it was not sound, nor defensible for the employer to rely upon the use of abusive language by the applicant as a reason to dismiss him, when the employer, themselves, conceded they would not discipline the other female colleague for doing the same. Commissioner Ryan surmised the situation and concluded that the incident of abusive and offensive language occurred however it was unfair, unjust and unreasonable for the applicant to be terminated. He found that the female colleague was more than prepared to approach the male applicant not less than three times, during work, with the ultimate aim of re-establishing their relationship. Ultimately, Commissioner Ryan believed that the essence of the colleague’s complaint was made out of hurt due to the ended relationship, stating ‘Heaven has no rage like love to hatred turned, nor hell a fury like a woman scorned’.
He ultimately found for the applicant, allowing for reinstatement of the applicant’s employment. Interestingly, the respondent (employer) opposed, believing that the reinstatement was inappropriate due to a loss of trust and confidence in the employee to properly conduct themselves in the workplace. The Commission, however, found that this was not nearly enough to constitute or support their contentions and there was nothing else before the Commission that would make it conclude that reinstatement was impractical.
Inappropriate Behaviour Treated Unfairly
In the second case, the applicant lodged an unfair dismissal complaint against their employer due to being treated in a harsh manner in comparison to another colleague.
It was submitted in evidence that the applicant and his manager engaged in inappropriate conduct at the staff Christmas party. This conduct involved touching various female colleagues on the breast numerous times and also divulging confidential information about the outcome of an individual in recruitment.
The NSW Industrial Relations Commission heard that the applicant apologised for his behaviour, admitted his actions were deplorable and admitted to all his wrong-doing. He also openly admitted he did not conduct himself in a professional manner. However, he also suggested that they were all good friends outside of work; the females knew he was gay and if he did not have their permission, he would not have touched them in this manner.
However, his manager denied all allegations of inappropriate behaviour put to him in the investigation. Whilst the investigation’s findings suggested that the manager’s behaviour was more concerning because he was the line manager and held a more senior position than the applicant, the applicant’s employment was terminated and the manager was only demoted. Further, the Commission heard evidence from several other eye-witness accounts of the evening that the manager did in fact participate in this inappropriate behaviour and that when the applicant’s inappropriate behaviour was reported to the manager on the same night, his reaction was to grab the breast of the female worker, saying, ‘it’s ok – we’re gay’. When another colleague objected, saying ‘you can’t touch there’, the manager questioned why because a former co-worker used to allow him to do that.
In their findings, Commissioner Tabbaa pointed out that the quantity of complaints against each of the men was not in issue – that one woman being touched was one too many. However, the quantity of complaints against each of the alleged offenders was the only way to make a fair comparison and to judge how each of the men should have been managed and punished.
There was one complainant against the both of them; she did not take issue with applicant; only with her boss. She was distraught because she had been felt up by her manager; but she did not want to take action against the applicant. Interestingly, departmental policies, including their Code of Conduct and Ethics and Dignity and Respect Policy, were used by the Commission to measure the two male workers’ inappropriate behaviour. The Commissioner found the policies had been breached by both men.
Ultimately, Commissioner Tabbaa compared the penalties meted out to each of the male colleagues to decide whether the applicant’s dismissal was harsh, unjust or unreasonable; ‘Having made comparisons between two men, the penalty of dismissal meted out to the applicant was harsh when assessed against the penalty meted out to [the other male worker]’. The Commission also found that the applicant’s reinstatement was not impracticable.
Commissioner Tabbaa also pointed out that there were a myriad of other disciplinary actions available to the Director-General to take if he considered the applicant had engaged in misconduct. A combination of these actions should have been taken and would have been warranted in these circumstances.
Public Service Association and Professional Officers’ Association amalgamated Union of New South Wales (on behalf of Andrew McCaskill) and Department of Attorney General and Justice  NSWIRComm 1009 (17 April 2014)