Sexual harassment investigation – Grabbing an Employee and Sexually Propositioning her was Valid Reason for Dismissal

The Fair Work Commission dismissed a former Calvary Hospital office worker’s application for an unfair dismissal remedy. Link to case

Andrew Powell commenced employment with Calvary Public Hospital in an administrative role in September 2014. On 26 May 2016, Mr Powell was suspended without pay pending an investigation into allegations of serious misconduct.

It was alleged that Mr Powell physically assaulted Ms Hacker, by “forcefully grabbing her by the arm and subsequently placing his hands on her hips and propositioning her by suggesting that they ‘catch up’ on the weekend.” On 9 June, Calvary Hospital appointed an external investigator to investigate that matter and consider the allegations.

The investigation determined that there was enough evidence to form the opinion that Mr Powell sexually harassed Ms Hacker by subjecting her to unwelcome conduct of a sexual nature. Further, it was found that Mr Powell’s conduct breached Calvary Health Care A.C.T.’s Code of Conduct, Calvary Health Care’s Workplace Behaviour Policy and Procedure and section 9(f) of the Public Sector Management Act 1994.

Mr Powell was issued with a show cause letter and provided with an opportunity to respond. On 5 August 2016, Mr Powell’s employment was terminated.

Deputy President John Kovacic found, on the balance of probabilities, Mr Powell did engage in serious misconduct by grabbing and propositioning Ms Hacker. This supported the finding that there was a valid reason to terminate Mr Powell’s employment. Deputy President Kovacic concluded that Mr Powell’s dismissal was not harsh, unjust or unreasonable and dismissed the application.

This is an example of how a sexual harassment investigation can ensure you have the evidence to back up your decision to dismiss an employee. Australian workplace Training & Investigation (AWPTI) can assist with all areas of investigation services, the cost of a sexual harassment investigation will in many cases be far the less than the cost of not doing one and the cost of the stress of having to defend your actions without evidence.

In addition to unfair dismissal matters it is also important to remember that sexual harassment can lead to large judgements against employers, such as 1.3 million dollars in the Matthews matter, see below for examples of the cost of sexual harassment in the workplace

Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues. Link to case

Collins v Smith (Human Rights)[2015] VCAT awarded more than $330,000 as compensation to Ms Collins, an employee who had been repeatedly sexually harassed by her employer, Mr Smith, the owner and manager of the Geelong West Licensed Post Office. Link to case

Tan v Xenos (No 3) [2008] VCAT 584 – a sexual harassment case where Ms Tan was awarded general damages of $100,000. Link to case

Poniatowska v Hickinbotham [2009] FCA 680, a sexual harassment case where the complainant was awarded $90,000 general damages in a total award of $466,000. Link to case

Ewin v Vergara (No 3) [2013] FCA 1311 – a sexual harassment case where Ms Ewin was awarded $110,000 in general damages and $293,000 for loss of past earning capacity. Link to case

GLS v PLP [2013] VCAT 221 – a sexual harassment case where a general damages award of $100,000 was made Link to case

Richardson v Oracle [2014] FCAFC 82 – a sexual harassment case where Ms Richardson was awarded general damages of $100,000 in a total award of $130,000. Link to case

The best way to make sure you have complied with your responsibilities is to train your staff and have an effective investigation mechanism in place, if you don’t have an internal resource consider having a professional and qualified workplace investigator on speed dial. The money you spend on training may save you in the long run, should things ever go wrong. http://awpti.com.au/workplace-investigator/

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me – http://awpti.com.au/employee-training/

If you receive a complaint and are unsure about the process it pays to call in an expert. Once again AWPTI can assist you in this regard – http://awpti.com.au/investigations/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of sexual harassment, misconduct, bullying & harassment and other issues facing employers and workplaces.

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me.

You can contact me on 02 9674 4279 or phil@awpti.com.au

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations
www.awpti.com.au
http://awpti.com.au/investigations/

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