What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 27 July 2020 – 2 August 2020

Workplace Massage Justifies Summary Dismissal, Says FWC

The Fair Work Commission (FWC) has upheld the summary dismissal of a cleaning company employee who agreed to massage a schoolteacher. The cleaning company, Bright Lightz Cleaning, dismissed Ms Jennifer Fauni under the Small Business Fair Dismissal Code after she squeezed the teacher’s back with her hands for two minutes to relieve their ‘back pain.’ In the unfair dismissal action, the cleaner claimed that she received no written warning, no investigation into the incident and had not been informed of any rule prohibiting her from massaging the teacher. On these grounds, the cleaner claimed that her dismissal was ‘illegal.’ However, previous authorities on the Small Business Fair Dismissal Code indicate that the FWC must have regard to the following in determining whether summary dismissal is justified

• First, ‘whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal;’ and
• Secondly, ‘whether the employer’s belief was, objectively speaking, based on reasonable grounds.’

While the FWC accepted the cleaner believed she was helping the teacher’s discomfort, the Commission considered her actions a ‘far cry’ from a person reacting to a medical emergency. In other words, the Commission rejected the argument that the cleaner’s beliefs were based on reasonable grounds. On this view, the FWC found that the massage ‘justified summary dismissal because it was a serious breach of the employer’s contractual terms with one of its biggest clients and thereby put that contract at risk.’ A takeaway from the Commission’s decision is that it is not always necessary to investigate instances of serious misconduct in circumstances where the employee has admitted to the conduct.

Federal Court Judge Slams Principal Solicitor for ‘relentless’ Sexual Harassment

The Federal Court has upheld a decision to charge a principal solicitor $170,000 for sexually harassing his employee over a ‘long period of time.’ The Federal Court, which branded him a ‘lonely’ and ‘despicable’ man, found that principal Owen Hughes engaged in ‘relentless’ conduct toward his employee. This included emails, threats and regular untoward invitations. In his appeal, Mr Hughes argued the $170,000 compensation award was ‘manifestly excessive’ and that there was no basis for aggravated damages. Mr Hughes also argued that the evidence did not support a conclusion of sexual harassment because he was ‘like Mr [Fitzwilliam] Darcy in Pride and Prejudice.’ Justice Perram, in handing down the Federal Court’s decision, said that ‘[t]he facts of this case are as far from a Jane Austen novel as it is possible to be.’ In finding against Mr Hughes, the Federal Court held that he engaged in a series of unwanted advances, including a ‘bombardment’ of emails that began two months after the employee started at the firm. In the emails, Mr Hughes proposed a romantic relationship and professed his love to the employee, which she categorically shut down and refused on numerous occasions. In one email, Mr Hughes told the employee she was not good enough at her job ‘since they were not lovers.’ An hour later, he sent an email with the subject line ‘expressing my feelings is not harassment’ and asked that she not take legal action against him. The Court remarked that the email exchanges were ‘mawkish and altogether inappropriate.’ The Federal Court also heard that on many occasions Mr Hughes would physically prevent her from leaving her office until she agreed to hug him first. Justice Perram agreed with the trial judge, labelling this conduct ‘despicable’ and agreeing it was ‘in every sense improper.’ In the decision, the Federal Court underscored the obvious power imbalance between Mr Hughes and his employee. The employee was his ‘paralegal, new to the profession and unable to move away from the area due to sharing two children with their father.’ Of this, the Federal Court said that ‘[a] decent person would not have exploited this power imbalance. As the events in the case show, and as the trial judge correctly apprehended, [Mr Hughes] is not a decent person.’