AWU-FIME Amalgamated Union v ACL Bearing Company
[1995] IRCA 255
•08 June 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - SEXUAL HARASSMENT - PROCEDURAL FAIRNESS - REINSTATEMENT
INDUSTRIAL RELATIONS ACT 1988, S.170EA,S170DE.
AWU-FIME AMALGAMATED UNION -V- ACL BEARING COMPANY
NO. TI 0156 OF 1994
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 8 JUNE 1995
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 0156 of 1994
B E T W E E N:
AWU-FIME AMALGAMATED UNION
Applicant
AND
ACL BEARING COMPANY
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE
DATE: 8 JUNE 1995
THE COURT ORDERS THAT:
The Respondent reinstate Mr Lowe to his former position on or before 14th June 1995.
The period between the date of termination of Mr Lowe’s employment and his reinstatement, be treated as continuous employment for all purposes.
The Respondent pay to Mr Lowe the sum of $10,860.00 within 21 days of the date of this judgment.
Liberty to either party to apply in respect of any consequential orders sought.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 0156 of 1994
B E T W E E N:
AWU-FIME AMALGAMATED UNION
Applicant
AND
ACL BEARING COMPANY
Respondent
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE
DATE: 8 JUNE 1995
REASONS FOR JUDGMENT
.
This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant, Mr Lowe seeks reinstatement. The Applicant was employed as a Tool Setter by the Respondent from the 17th April 1989 until the 19th August 1992. The reason he was given for the termination of his employment was that he had sexually harassed another employee and this was in breach of company policy. The Applicant was alleged to have:-
Said to the other employee “I like it tight”.
To have held up a spindle and said “How would you like this up you”.
Poked the other employee in the ribs.
The employer conducted an investigation of the allegations against the Applicant. A Human Resources Manager from Melbourne, Mr Condon conducted the investigation and took statements from the Applicant, from Miss Yuswak, the employee who had complained about his conduct, and other workers at the Respondent’s premises. Mr Condon formed the view following a statement from another employee, Mrs Curtis that the Applicant had sexually harassed Miss Yuswak.
Miss Yuswak’s complaint had arisen in circumstances where the Applicant had placed a reject part on the production line in order to test her work. Miss Yuswak had advised her supervisor, Mr Harris, that the Applicant had poked her in the ribs and made a number of crude and offensive statements to her. It was as a result of this that the investigation took place.
Mr Condon initially prepared a report that did not recommend dismissal of the Applicant. His initial recommendations involved counselling for the Applicant and various other changes at the Respondent premises. Only after Mrs Curtis told him that the Applicant had done similar things to her some years before when her employment with the Respondent had commenced did he decide that because of this evidence then the Applicant was lying and therefore had done the things complained of by
Miss Yuswak.
The Applicant denied that he had made the remark concerning the spindle and he denied that he had poked the Applicant although he said he may have accidentally bumped her at times. Further he claimed that the words “I like it tight” were said without any second meaning being intended. It is important to note that the Respondent’s premises is a noisy factory. Miss Yuswak thought that her work was being criticised. Her evidence before me contained some inconsistencies, however on balance I accept that the Applicant did poke her in the ribs and did make the remark about the spindle. On balance I find that the remark “I like it tight” was only related to Miss Yuswak’s work.
I do not however rely on the dispute between the evidence of the Applicant and
Miss Yuswak in determining this matter.
The company relied on its policy on sexual harassment. The policy is based on a definition of “sexual harassment” contained in the Sex Discrimination Act 1984 before significant changes were made to that definition in 1992. The policy specifies that an employee found to have sexually harassed another employee will be dismissed. The policy document was not distributed to most employees, including the Applicant.
The policy and the way it was implemented overlooked completely the consideration of whether “a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended , humiliated or intimidated”. The passage in quotes comes from the definition of sexual harassment contained in the Sex Discrimination Act since 1992.
The most obvious way that a person such as the Applicant can be reasonably expected to know that their conduct is unwelcome is to be told that, either by the person complaining of the conduct or some other person. In this case the evidence was clear and uncontroverted that no-one told the Applicant that his conduct was unwelcome and that he should change his behaviour.
The company policy is not reflected in the Employee Handbook (Exhibit A1). This was the only policy document ever seen by the Applicant and presumably by most other employees of the Respondent. The Employee Handbook describes sexual harassment as “sexual advances which are not invited, not wanted and repeated”. It obliges the person complaining of harassment to “make it clear to the person harassing you that such behaviour is offensive to you”.
The Employee Handbook did not clearly state that an employee who has sexually harassed another employee will be dismissed. It is inconsistent with the company policy.
The Respondent was aware of problems with its policy as early as June 1991. Contained in its policy document which was Exhibit R2 was a memo raising firstly the problem of the policy not being distributed to all employees and secondly questioning the fairness of the policy that sexual harassment would always result in termination of employment.
It was argued by the Respondent that sexual harassment is comparable to fighting in the work place. Fighting is usually regarded as serious misconduct by most employers and most employees. The major difficulty that I have with that comparison is that there is a subjective element to sexual harassment. The conduct must be “unwelcome” and that may only be known by the harassed person until that person tells somebody else. It is important to note that the same conduct will not be sexual harassment if the conduct is not unwelcome. The other difficulty is that sexual harassment embraces such a broad range of conduct that to assume that it always warrants dismissal in no way reflects the social policy behind legislation such as the Sex Discrimination Act. Many employees will be discouraged from making a genuine complaint of sexual harassment if they know that a person will be dismissed merely because of it.
During the course of the hearing the parties both sought to adduce evidence relating to the past conduct of both Miss Yuswak and of the Applicant. I excluded that evidence on the basis that it lacked probative value.
I am not satisfied that the Respondent had a valid reason for the termination of the Applicant’s employment and I regard the failure to administer warnings or counselling to the Applicant regarding his conduct as harsh unjust and unreasonable.
For these reasons I find that the termination of the Applicant’s employment was unlawful and in breach of the Industrial Relations Act 1988.
Reinstatement is the primary remedy in this jurisdiction. I have not been convinced by any of the reasons put forward by the Respondent as to why this Applicant should not be reinstated. I therefore order that the employer reinstate Mr Lowe on or before 14 June 1995. Secondly I order that the period between the date of termination of
Mr Lowe’s employment and the date of reinstatement be treated as continuous employment by the Respondent for all purposes. Finally I order that the Respondent pay to the Applicant the remuneration lost by the Applicant because of the termination of his employment in the sum of $10,860.00 within 21 days from the date of this judgment. I give the parties liberty to apply in respect of any consequential orders sought.
I certify that this and the preceding three pages are a true copy of my reasons for judgment.
DATE OF HEARING: 17,18 & 19 May 1995
FOR THE APPLICANT: Mr McMillan
FOR THE RESPONDENT: Mr Giudike
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