Termination Decent for Indecent Exposure
The Fair Work Commission (“FWC”) has held that an employer is not exposed to liability for dismissing a supervisor who indecently exposed himself to another employee.
Generally, an employer must not unfairly dismiss an employee. Section 385 of the Fair Work Act 2010 (Cth) (“The FW Act”) states that this means the dismissal must not be “harsh, unjust or unreasonable”.
Section 387 of the FW Act further expands upon this by listing criteria that the FWC must consider in making any decision. These criteria are:
- whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
- whether the person was notified of that reason; and
- whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
- if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
- the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- any other matters that the FWC considers relevant.
Manuel Maciel v Lynch Admin Services Pty Ltd T/A Lynch Group  FWC 4914 (28 September 2017) considered the application of these criteria in an instance of termination for serious misconduct.
The Applicant in the case was a Portuguese warehouse supervisor who had been employed with the Respondent for over 25 years. The employer was the largest wholesale floral supplier in the southern hemisphere.
Despite an otherwise good record, the Applicant on two occasions was alleged to have unzipped his pants and exposed himself to co-workers in March 2017. Following an investigation into the allegations, the employer found grounds to summarily terminate the Applicant’s employment. However, it provided five weeks’ pay in lieu of notice.
The Applicant denied any wrongdoing and characterised the allegations against him as:
a sordid attempt to sully his reputation… [as] he had never opened his pants or anything like that.
The employer, which had the evidentiary burden as it was relying on the allegation of serious misconduct, maintained that its CCTV footage and its witnesses were more credible than the evidence of the Applicant.
Commissioner Cambridge relied upon the criteria listed in s.387 of the FW Act above in making his decision. The Commissioner found that the conduct of the Applicant had been “unpleasant, disturbing and troubling” and that the dismissal was not “harsh, unjust or unreasonable”. Furthermore, Commissioner Cambridge found the Applicant’s evidence to be “inconsistent, incongruous, and generally unbelievable”.
As part of his consideration, Commissioner Cambridge commented found that:
… the employer conducted a fair, thorough and balanced investigation into the serious allegations made against the applicant. Further, the employer implemented a measured and careful show cause process which enabled the Applicant to make out a defence or offer an explanation in respect to the allegations of serious misconduct”.
This reflected positively on the employer as it showed that at all times it had acted fairly in assessing the allegations made by the other employees.
Message for Employers
This case highlights the importance in having a rigorous internal investigative policy to avoid being caught with your pants down in the event of serious misconduct. If an employee behaves inappropriately in the workplace, employers have a right (and possibly a responsibility) to take appropriate action against them.
We recommend that employers seek legal advice if you have any concerns on how to effectively manage serious misconduct allegations or if you feel that an employee has made an unmeritorious Unfair Dismissal or Adverse Action claim against the employer.