THE Australian Industrial Relations Commission has found that an employee who sent SMS messages of a sexual nature to a fellow employee was fairly dismissed.
The employee argued that when he sent SMS messages to a female employee suggesting he would like to touch her and other messages of the like, he was only joking.
The employee was concerned and complained about his behaviour.
The commission rejected the employee’s argument that the conduct he engaged in was no different to the type of conduct engaged in by other members of staff and thus rejected the claim that there was a culture of sexual innuendo and the like at the workplace.
The employee also submitted that he was not given a proper opportunity to put his side of the story or answer any allegations.
The commission found that there was an immediate investigation by the employer.
He was asked on two separate occasions by a manager and a director of the company about what he had done and he was given an opportunity to explain his conduct.
He responded in both meetings by saying that he had sent it as a joke.
Following the meetings the employee was notified of the reason for his termination.
That reason was confirmed in the letter sent to him.
The commission found that given the nature of the conduct, a previous warning was not necessary in this case but, in any event, there had been a prior warning given by the manager for inappropriate conduct.
The commission also noted that the conduct in issue was in clear breach of the company’s sexual harassment policy.
The existence of the policy and the applicant’s knowledge of the policy were found to be important factors in the decision making process.
This case reinforces the message that employers should have investigation procedures in place for dealing with sexual harassment complaints and also reinforces the need for sexual harassment policies that are widely publicised in the workplace.
Carla Paratore, solicitor
Ian Curlewis, partner
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