The Case

(2017)

Secure Cash employed Mr Sapienza as a banking courier. On 18 July 2017, Mr Sapienza’s employment was summarily terminated based on complaints from two young female employees.

The complainants claimed that Mr Sapienza had:

• stated to a female employee, “When will you be leaving your boyfriend so we can run away together?”;
• told employees they were good looking and asked one 18-year-old female employee for her telephone number;
• told young female employees that he had dated girls of their age;
• asked two female employees, after stating they had missed his birthday, “where’s my kiss?”; and
• hugged female employees when arriving and leaving work.

Mr Sapienza denied most of the allegations. However, he admitted hugging female staff and asking a female employee for a kiss. Mr Sapienza put it down to his affectionate Italian culture and, “his cheeky nature and tendency to joke around”. Mr Sapienza indicated he thought the incidents were friendly and consensual, and they had no sexual connotation.

Mr Sapienza lodged a claim for unfair dismissal in Fair Work Commission (FWC).

The Verdict

Deputy President Bull of the FWC on hearing Mr Sapienza’s evidence, held: “I find that the admission by Mr Sapienza that he did hug and ask for a kiss from women as young as 18 years was sufficient to substantiate that the respondent had a valid reason for the applicant’s termination of employment. Despite Mr Sapienza’s explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naive, to say the least.”

The conduct of Mr Sapienza in the workplace was “a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment.”

The FWC found that while there was a valid reason for the dismissal, Mr Sapienza had not been provided with an opportunity to respond to those reasons prior to dismissal. As such, Secure Cash’s process was “seriously lacking in procedural fairness”. Notwithstanding, the FWC found the dismissal was not harsh, unjust or unreasonable as the seriousness of Mr Sapienza’s admitted conduct outweighed Secure Cash’s lack of procedural fairness.

The Lessons

While in this case the employee’s conduct was serious enough to outweigh procedural unfairness, procedural fairness is usually an important factor in determining whether a dismissal is unfair. If you miss the important procedural fairness steps, you risk the employee being successfully reinstated or awarded up to 6 months’ compensation.

To ensure procedural fairness, you must:

• always put the relevant allegation(s) to the employee;
• provide the employee with a reasonable opportunity to respond;
• consider the employee’s responses;
• consider any mitigating factors, including the employee’s length of service and any warnings; and
• determine the appropriate disciplinary outcome (including possible dismissal) after considering all relevant information. If there is more than one employee who has engaged in the conduct, make sure the disciplinary outcomes for all are consistent and fair.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.