Commission confirms inappropriate touching constituted sexual har

Courtesy of Australian Payroll Association

Sexual harassment in the workplace has been the subject of significant reform over the past few years, with an even greater onus on employers now to take proactive measures to minimise or eliminate the risk of sexual harassment in connection with work.

When taking such measures, employers should be mindful that sexual harassment is now expressly stated as constituting “serious misconduct” under the Fair Work Regulations 2009 (Cth) (FW Regulations) and therefore a valid basis for summary dismissal.

In Tamaliunas v Alcoa of Australia Limited [2024] FWC 779, the Fair Work Commission (FWC) was required to consider the unfair dismissal application of an employee who was summarily dismissed from his employment for sexually harassing a female colleague.

In or around September 2023, Alcoa of Australia Limited (the Employer) commenced an investigation into reports that the employee, an Advanced Mechanical Tradesperson, had inappropriately touched his female colleague while gathered in a small office space with others.

The female colleague told the Employer that the employee had squeezed between her and a desk by placing his hands low and underneath her bottom, causing her to jump and make a noise from the unexpected contact.

The employee admitted to touching his colleague but claimed his back was turned away from her as he placed his hands on her upper bottom near the side of her hip, saying words along the lines of “scuse” so she would move out of his path.

The investigation resulted in a finding that the employee had made “unwelcome and socially inappropriate physical contact” with his colleague causing her to “feel uncomfortable in the workplace”.

The employee was summarily dismissed from his employment for breaching the Sex Discrimination Act 1984 (Cth) (SD Act) as well as the Employer’s Code of Conduct, Equal Employment Opportunity Policy and Fair Treatment Policy.

Before the FWC, the employee claimed that his dismissal was a disproportionate response to his conduct, submitting that he had accidently touched his colleague when trying to pass her in a confined space.

The FWC disagreed that the contact was accidental noting the Employer’s contemporaneous notes taken during the investigation which confirmed that the employee had conceded to placing his hands on the employee’s lower torso and applying some force to move her out of the way.

The FWC also rejected the employee’s submission that it was reasonably foreseeable that standing in a narrow walkway may lead to someone making accidental contact and warned that such an argument constituted the “well worn… path of blaming the victim for the contact”. It instead found that the female colleague was simply occupying the available space in the room, and she did not invite the purported “accidental contact” by simply joining her male co-workers in a small office space.

The FWC did not consider the employee’s conduct to be entirely without a sexual nature, stating that it is unclear why he would force his way through a gap which would require him to physically touch a female colleague. It added that the employee could have simply asked his colleague to move or, if she didn’t move, repeated the question or waited patiently until there was sufficient space for him to pass.

The FWC considered the employee’s contact to be “unnecessary and entirely avoidable”. It added that regardless of the employee’s intention, his conduct was unwelcome and, when viewed objectively, a reasonable person would have anticipated that the female colleague would be offended, humiliated and intimidated.

In considering the above, the FWC was satisfied that the employee had intentionally “groped” his colleague in a sexualised location and that this amounted to a valid reason for dismissal.

In considering whether the conduct was sufficient to constitute serious misconduct, the FWC considered the recent amendments to the Fair Work Act 2009 (Cth) (FW Act) at [147]:

The recent amendments to the FW Act which specifically identify sexual harassment as a valid reason for dismissal reflect a societal recognition that sexual harassment has no place in the workplace in the same way as violence or theft don’t. These are types of conduct for which the provision of, and service of, a notice period is not appropriate because the conduct goes to the heart of trust and confidence the employer has in the employee and because of the risk posed to others in the workplace.

The FWC was satisfied that the employee’s conduct was sufficient to constitute serious misconduct and therefore, the Employer’s decision to terminate the employee was not disproportionate to such conduct.

The FWC concluded in finding that the employee’s dismissal was not harsh, unjust or unreasonable and dismissed the application.

Lessons for employers

When managing sexual harassment in the workplace, employers should consider the FW Regulations which now categorise sexual harassment as “serious misconduct” and therefore a valid reason for dismissal.

Employers should also be mindful that the amendments to the FW Regulations coincide with:

  • the new prohibition of sexual harassment in connection with work and vicarious liability provisions under the FW Act; and
  • the new positive duty under the SD Act which requires employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, sex discrimination and sex-based harassment, as far as possible.

Employers must ensure that their policies and procedures are reviewed and updated to reflect the vast legislative changes relating to sexual harassment in the workplace. General workplace training is also an excellent idea to accompany updated policies and procedures and ensure that all employees understand the new standards that apply.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

/Public Release. View in full here.