In September 2018, Vegco1 received a complaint from an employee, Mr Fletcher, alleging that he had witnessed Mr Heesom (a vegetable packer in its packing department) make the following inappropriate comments to a fellow co-workers:
In October 2018, another employee, Mr Stevens complained to Vegco that Mr Heesom said that Mr Stevens' sister was “really hot” and he wanted to sleep with her.
Vegco conducted an investigation into the complaints, concluded that Mr Heesom had engaged in the conduct complained of and summarily dismissed him.
Mr Heesom brought an unfair dismissal claim in the Fair Work Commission.
In a decision handed down on 14 March 2019, Deputy President Colman of the Commission found that the three allegations of inappropriate conduct by Mr Heesom were substantiated. DP Colman held that this conduct constituted “harassment” under Vegco’s code of conduct and “sexual harassment” under Vegco’s disciplinary policy, and even without those policies, his conduct would have constituted misconduct and therefore a valid reason for his dismissal.
DP Colman held that the fact that Ms Kingston said she was not “overly” offended by the request for a kiss did not mean Mr Heesom’s conduct did not constitute sexual harassment. It was sufficient that his conduct was unwelcome, sexual in nature, and unacceptable. DP Colman stated that “[Ms Kingston] should not be put in the position where she needs to contemplate whether to make a complaint. She deserves to come to work and be treated with respect.”
DP Colman found that Mr Heesom’s comment about Mr Stevens’ sister also constituted sexual harassment, as Mr Heesom engaged in unwelcome conduct “in relation” to Mr Stevens by telling him he wanted to sleep with his sister. DP Colman said that “even if the comment was considered to fall outside the definition of sexual harassment, it is still highly inappropriate and deserving of censure”.
Overall, DP Colman concluded that “there is no place for bawdy offensive alpha-male behaviour in the workplace”.
The 2017 #MeToo campaign has had a positive impact on awareness of sexual harassment in the workplace and the tolerance levels of both employees and employers for sexual harassment are lowering accordingly.
The Commission’s support of a summary dismissal for conduct that may previously have been described as “alpha-male” or “bawdy” rather than “sexual harassment” is a clear demonstration of the direction that businesses should be taking.
Businesses should not turn a blind eye to conduct that crosses the line into the territory of “unwelcome” and “sexual in nature”. Employees should also be made aware that conduct which crosses that line could result in termination of employment, regardless of whether it is a “one-off” incident or the person harassed was not “overly” offended by it.
Employers should also remember they have a duty of care under the Occupational Safety and Health Act 1984 (WA) to maintain a safe workplace, which includes not exposing workers to sexual harassment.2
If you have any questions regarding sexual harassment or would like to update your business’ sexual harassment or disciplinary policy, please contact Lavan’s Employment and Safety team.