Despite a service period of over 30 years, the Fair Work Commission (FWC) has upheld the dismissal of a worker for serious misconduct, which comprised of the repetitive touching of a receptionist, deeming that the significant age gap between the parties left the receptionist feeling vulnerable and unable to take the necessary action.
 Facts
Despite having served more than 30 years with the Respondent in this case – a transport and logistics company – the Applicant, who was employed as a handyman, was summarily dismissed in late 2017 for serious misconduct.
Underpinning the Respondent’s dismissal, were allegations that he had:
While the receptionist claimed that the touching was not sexual in nature, she nonetheless gave evidence that the Applicant constantly invaded her personal space, touched her shoulders and hair without her consent, and gave her “unwelcome hugs”. This behaviour ultimately led the receptionist to feel a high degree of discomfort within the workplace. Despite this, the receptionist provided further evidence that she felt unable to tell the Applicant to stop and instead, could only reveal the incidents to a select few colleagues.
Once informed of the allegations against the Applicant, the Respondent’s management team directed the Applicant to refrain from entering the building where the receptionist worked. The Applicant, however, failed to follow this directive, entering the building on multiple occasions, where he spoke to the receptionist and followed her when she moved away. Â
In a later meeting with management regarding the receptionist’s allegations, the Respondent became abusive, swearing and raising his voice, and making threats to nearby staff.
The Applicant’s Claim
 In showing that the Applicant was eligible for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act), the barrister for the Applicant claimed that the receptionist was required to tell the Applicant to stop, but failed to do so, diminishing the Applicant’s liability at law. The barrister for the Applicant went on to claim that the conduct was mutual, while asserting that the “non-sexual” meant that summary dismissal was not warranted.
Outcome and Reasoning
The FWC, in silencing the Applicant’s claims, found that there was, in fact, a valid reason for the dismissal, as a result of the Applicant’s:
Revoking the Applicant’s claim that the touching was mutual in nature, the FWC noted that the receptionist was “young in age” and therefore, that “it is understandable that she would not feel able to tell a much older man…to stop”. Accordingly, the FWC found there to be, despite the Applicant’s claim, unequivocal evidence that the receptionist wanted the touching to stop.
The FWC went on to find that the Applicant’s prohibited re-entry of the building in which the receptionist worked constituted “inappropriate pressuring of a fellow employee, and a much younger employee”; a factor which further supported the validity of the dismissal in the eyes of the FWC.
Referring to the Applicant’s abusive and threatening conduct in the meeting with the Respondent, the FWC conceded “actions and words have to be considered in context, including the nature of the workplace, which may on occasions be somewhat rough and tumble”. In saying this, the FWC noted that there remains a limit on the nature of conduct that is permissible as an “employer is entitled to a certain standard of conduct from employees”. With this, the FWC concluded that the Applicant’s abusive behaviour and its threats towards staff were inappropriate in the circumstances.
Importantly, in dismissing the Applicant’s application, the FWC held that it was a culmination of the Applicant’s misconduct, lack of remorse and “unreliable and self-serving” evidence which justified the dismissal and counterbalanced factors which weighed in his favour, including his age, long serves and difficulty in finding further employment.