The Fair Work Commission (FWC) has upheld the summary dismissal of a “bawdy offensive alpha-male” employee who told a male colleague his sister was “really hot” and that he wanted to “f— her” as well as asking another female colleague for a kiss.
Although the female colleague did not initially report the incident and later said she was “not overly offended”, FWC Deputy President Alan Colman found that she “was offended, and shocked” as she told him to “f— off”.
“[The employee’s] conduct was unwelcome, sexual in nature, and unacceptable,” he said.
“That [the female colleague] did not report the incident does not diminish the seriousness of the conduct. She should not be put in the position where she needs to contemplate whether to make a complaint. She deserves to come to work and be treated with respect.”
Deputy President Colman found that both this incident and the incident where the employee told his male colleague he wanted to “f— his sister” amounted to sexual harassment.
The employee denied that he engaged in any of the conduct alleged against him, saying that the employer had manufactured the complaints.
However, Deputy President Colman said his evidence about the kiss request “was not at all credible”.
“On the one hand he maintained his denial of the allegation, but on the other hand sought to emphasise that [the female colleague] had not taken it seriously. He asked [the female colleague] ‘you didn’t think anything of it at the time, you thought it was a joke, you didn’t think anything of it, did you?’,” he said.
In relation to the remark the employee made to his male colleague, Deputy President Colman said the following:
“[The male colleague’s] evidence was that in late September 2018, [the employee] said to him that he had seen his little sister in court the previous day, that she was really ‘hot’ and he would like to ‘f— her’. [The employee] denied this. He said that he was not in court in September, but rather in April, and that he could prove this from the court record. He did not produce any proof”.
“But even if [the employee’s] evidence about when he attended court is correct, that would not disprove [the male colleague’s] allegation about what [the employee] said about his sister.
“The central complaint was that [the employee] had said to [the male colleague] that he had seen his little sister and that he wanted to ‘f— her’. The question of when [the employee] had seen her and why is not of any great significance, except to the extent that it might call into question the reliability of [the male colleague’s] evidence.
“However, I found [the male colleague] to be a candid and sincere young man who objected to [the employee] making crude remarks about his younger sister. I find [this] allegation against [the employee] to be substantiated.”
Deputy President Colman added, “even if the comment were considered to fall outside the definition of sexual harassment, it is still highly inappropriate and deserving of censure”.
“Even if there had been no code of conduct or disciplinary policy, I consider that an employee should not have to be told to treat his fellow co-workers civilly.
“There is no place for bawdy offensive alpha-male behaviour in the workplace,” he said.
“The conduct that I have found [the employee] to have engaged in was of sufficient gravity to constitute serious misconduct … [he] had received a final written warning and an ‘absolute final written warning’.
“[The employee] has not offered any apology for the conduct that I have found him to have engaged in. He does not acknowledge that he has done anything wrong.”
Deputy President Colman dismissed the employee’s application for unfair dismissal remedy as he found the dismissal was “not harsh, unjust or unreasonable” and “not unfair”.