The Fair Work Commission (FWC) has found that the employee of a small family business had no choice but to resign after his hours were reduced when he made a sexual harassment complaint.
The employee at Delshine, a cleaning chemical company in Perth, worked alongside the business owner, who was also his former father-in-law, Mr Bus.
One day he told Mr Bus he could no longer work alone at the premises because Mrs Bus, the employee’s ex-mother-in-law and co-owner, would regularly visit the workplace and sexually harass him.
However, Mr Bus said he couldn’t guarantee he would attend the workplace any later than 2pm on any day, as he was about to retire.
Four days later, Mr Bus then told the employee he would reduce his hours with immediate effect and instructed him to sign the following notation in the wages book:
“As discussed due to sexual harassment claim and reduction in sales the new working hours will be 9am – 2pm each day with no lunch break commencing immediately.”
The employee refused to sign it and after an angry exchange with Mr Bus, left the premises.
The employee alleged that Mr Bus said that he “knew where the door is” if he didn’t sign the notation, while Mr Bus alleged that the employee told him he could “stick” his job and that he would see him “in court”.
When the employee returned to the company the following workday, Mr Bus told him he was not allowed to be there as he had quit. The conversation then became heated and the employee refused to leave. Mr Bus called the police.
The police arrived and advised the employee to leave the building and lodge an unfair dismissal claim with the FWC.
In the hearing, Delshine submitted the employee agreed to reduce his work hours so he would have more time to dedicate to his lawn mowing and gardening business.
The employee denied this, submitting that the employer cut his hours because of his ex-mother-in-law’s inappropriate behaviour.
FWC Deputy President Melanie Binet rejected the employer’s version of events, finding that the employee had “no effective or real choice but to resign”.
“It is unclear of the true extent of the conduct but it appears likely, given the corroborative evidence of [the employee’s partner] and [the employee’s daughter], that [the employee] was in fact subjected to inappropriate treatment by Mrs Bus,” Deputy President Binet said.
“The only solution posed by Mr Bus was to impose a significant reduction in [the employee’s] employment conditions. [The employee] is entitled to enjoy a workplace free of harassment.
“A refusal to provide such a work environment other than at the cost of a significant portion of his income left [the employee] with no real choice but to resign.”
“[The employee] was clearly and justifiably unhappy about the reduction in his hours of work. A reduction in hours of work is not an appropriate response to a complaint by an employee that they are the subject of sexual harassment.
“I am not satisfied that [the employee] did state that he resigned. If he did do so this statement clearly occurred in the heat of the moment and was a consequence of conduct engaged in by his employer.”
Deputy President Binet found the dismissal was unfair and ordered Delshine to pay the employee four weeks’ wages as compensation.
The employee did not seek reinstatement.