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AIRC Upholds Dismissal over SMS Sexual Harassment |
Mr. Clark was dismissed summarily for misconduct by his employer Burson Automotive Pty Limited. He made application to the AIRC under the Workplace Relations Act 1996, s170CE, contending his termination was harsh, unjust or unreasonable. The AIRC dismissed Mr. Clark's application. |
Mr. Clark was Acting Manager for Burson's Echuca store and had a number of encounters with a 19-year-old female employed as a driver with the company. He informed the woman that he dreamt about her, slapped her on the bottom with a gasket set, sent her one SMS message that read "Hey Baby", and another SMS to the effect that he would like to put his hands up her skirt and rub her "arse". The woman became very distressed and informed other employees in the business. When management interviewed Mr. Clark regarding the incidents, he admitted sending the SMS messages, but said that he was joking. Mr. Clark claimed that jokes of a sexual nature were common in the office, although no other evidence was introduced to support his claim. |
In determining whether to terminate an employee, employers should consider the following factors:
- whether there was a valid reason for the termination related to the capacity or conduct of the employee;
- whether the employee was notified of the reason;
- whether the employee was given an opportunity to respond;
- if the termination was related to unsatisfactory performance, whether the employee had been warned of the unsatisfactory performance.
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| The AIRC was clearly concerned about the fact that the victim in the case was a 19-year-old woman in a junior position within the company. The Commission specifically stated that young female employees need to know that they can complain about unacceptable behaviour without risking their employment. |
Also bolstering the company's position was the fact that it had a Harassment Policy, that was contained in an employee handbook and displayed in the workplace. The policy cited examples of harassment and indicated that disciplinary action, including dismissal would be taken against any employee who harassed another employee. |
http://www.airc.gov.au/documents/other/other_decisions.html (follow links to December 2003 decisions).
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Peter McNamara |
peter.mcnamara@cmlawyers.com.au
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