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Fair Work Commission Upholds Dismissal over Explicit Language: A Case of Sexual Harassment

The Fair Work Commission (FWC) has recently supported the dismissal of an employee who was found guilty of sexual harassment. The employee allegedly used explicit language during a dispute with a colleague, crossing the boundaries of regular workplace banter.

The Cairns-based sales representative, employed by Queensland building supplier Lyndons, was fired in November for bullying and sexual harassment. The decision followed a thorough investigation into an incident that had occurred three months earlier. The representative was accused of making sexually offensive remarks to a male colleague during a disagreement.

The affected colleague, who testified that he was regularly subject to inappropriate comments and bullying from the sales representative, resigned the same day. Two days later, he formally lodged a written complaint with the company.

Although the incident was verified by two other employees, the sales representative appealed for reinstatement or compensation. He contested the claims made against him, arguing that if the reported incident had occurred, the subsequent termination was an “excessive” reaction given the frequent use of profanity in the workplace. He further suggested, through his lawyer, that the disputed remarks were “figurative” in nature.

In his defense, the sales representative claimed his dismissal was a result of tension between him and his manager, which arose after he filed a complaint following a performance warning.

Deputy President Theresa Dobson reported that the sales representative had been informed that ‘appropriate action’ had been taken in response to his complaint. He was on medical leave from late July to early August 2022. Upon his return, he was assigned new responsibilities contrary to his medical certificate which explicitly stated he should not undertake new tasks.

In mid-August, he was put on a performance improvement plan, after which he took more leave. He returned to work a week later, and the contentious incident reportedly occurred the following day.

Despite the sales representative’s assertions, Dobson saw no credible connection between his complaint about his manager and his inappropriate behavior towards his colleague.

After evaluating the evidence, Dobson concluded that the explicit remarks, as alleged, met the standards of proof and clearly fell under the definition of sexual harassment as per the Fair Work Regulations.

Emphasizing that such behavior was unacceptable and posed a risk to the employer’s obligation to provide a safe working environment, Dobson confirmed that the dismissal was neither harsh, unjust, nor unreasonable, thus ruling out the possibility of the representative being unfairly dismissed.

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