The Fair Work Commission (FWC) has ruled in favour of Star Casino’s decision to terminate an employee who had allegedly tapped a colleagues bottom in an act of comradery and threatening that he would '..raise HELL for THE STAR'.
In issue
- Whether the Applicant had been unfairly dismissed pursuant to section 394 of the Fair Work Act 2009 (Cth).
- Whether the alleged conduct constituted sexual harassment
The background
Mr Emmanual Montes alleged that The Star Casino (The Star) unfairly dismissed him when he was summarily terminated on the grounds of serious misconduct. The alleged misconduct that the Applicant engaged in emerged from complaints from his team, which consisted of:
- acting inappropriately and unprofessionally towards another team member by hitting them on their backside with a serving tray; and
- actions and behaviours towards a Duty Manager.
Mr Montes argued that the claims made against him were frivolous and without substance. In response to the physical conduct, Mr Montes submitted that it was not an act of unnecessary familiarity but one of existing familiarity and therefore he was 'innocent of the charge'. Further, the conduct was not inappropriate in the context of the jokes that had taken place between him and the team member over the previous months. As a result, The Star issued Mr Montes with a written warning regarding his conduct.
In coming to a decision to dismiss the Applicant, The Star took into account Mr Montes’ responses to the complaints made against him, the relevant company policies, the written warning and that he had undertaken retraining on appropriate behaviour and conduct in the workplace after the written warning was issued. It also took into consideration his inability to recognise the inappropriateness of his conduct
The decision at trial
The Commissioner found that there was a valid reason for Mr Montes’ dismissal, in that he engaged in inappropriate, unprofessional behaviour that breached The Star’s policies and Code of Conduct.
Further, Mr Montes did not deny his actions, but strenuously refused to accept that his behaviour of ‘tapping a female colleague on the bottom with a serving tray’ was inappropriate, and he refused to apologise to the complainant. Whether or not he felt a degree of comradery with his team member, the physical contact he engaged in was highly inappropriate and amounted to sexual harassment
The FWC concluded that the Mr Montes was not unfairly dismissed and that the decision made by The Star was not harsh, unjust or unreasonable.
Implications for you
Employers have the right to dismiss an employee if he/she has engaged in serious misconduct. This is further justified if the employee demonstrates that he/she was unable or unwilling to comply with company policies on appropriate workplace conduct.
Further, acts of intended comradery where physical touching is involved may constitute sexual harassment especially if the conduct is inappropriate and unwelcome to the recipient.
