Tom Krzywicki v Boeing Aerostructures Australia Pty Ltd trading as Boeing Aerostructures Australia

[2014] FWC 6489

[2014] FWC 6489 [Note: a correction has been issued to this document]

The attached document replaces the document previously issued with the above code on 30 September 2014.

The document has been refiled to correct a typographical error in the subject line.

Associate to Deputy President Smith

Dated 3 October 2014

[2014] FWC 6489 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Tom Krzywicki
v
Boeing Aerostructures Australia Pty Ltd trading as Boeing Aerostructures Australia
(U2014/7235)

DEPUTY PRESIDENT SMITH MELBOURNE, 30 SEPTEMBER 2014

Application for relief from unfair dismissal - sexual harassment.

[1] This is an application by Mr Krzywicki seeking relief in relation to the termination of his employment by Boeing Aerostructures Australia Pty Ltd trading as Boeing Aerostructures Australia.

[2] This application is made pursuant to s.394 of the Fair Work Act 2009 (the Act). At the commencement of the proceedings I adjourned into conference to discuss with the parties the requirements of s.399 of the Act. As the applicant was seeking the remedy of reinstatement, it was decided that the matter should proceed by way of hearing.

[3] Section 396 of the Fair Work Act 2009 (the Act) provides that the Fair Work Commission must decide certain matters before considering the merits. One of those matters is whether or not the person is protected from unfair dismissal.

[4] Section 382 provides for when a person is protected from unfair dismissal.

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $129,300 from 1 July 2013

[5] I am satisfied that Mr Krzywicki is protected from unfair dismissal.

The issue

[6] The matter has been narrowed by the parties as to whether or not there was a valid reason for the termination of Mr Krzywicki’s employment. There is no issue in relation to procedural fairness.

[7] In this connection it is said that the case will be reduced to the credit of two witnesses - Mr Krzywicki and Ms Thompson.

[8] This case turns on whether or not Mr Krzywicki sexually harassed Ms Thompson in her employment. Much of the conduct is admitted although it is said that there was a level of mutuality in the banter which existed. It was on this point that the evidence diverged.

[9] In addition there were some alleged factual matters which were disputed.

[10] A further factor in this matter is that for a period of time Mr Krzywicki was Ms Thompson’s co-worker. Later Mr Krzywicki became Ms Thompson’s supervisor where the power relationship differed.

[11] I turn firstly to the evidence in relation to the detail of the harassment. I do not intend to detail the harassment as it would not assist either Mr Krzywicki or Ms Thompson.

[12] However, it can be said that many of the incidents were not trivial. To assist with this understanding, sexual harassment is defined as:

Commonwealth Sex Discrimination Act (1984)

This act was designed to deter discrimination on the grounds of sex from affecting the chance of women and students being able to participate equally in the workforce and in schools.

Under Section 28 (3), sexual harassment occurs

‘if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours . . .. or engages in other unwelcome conduct of a sexual nature in relation to the other person, and -

the other person has reasonable ground for believing that a rejection . . . would disadvantage the other person in any way in connection with the other person’s employment or work or possible employment or possible work, or

as a result of ... rejection ... or objection to the conduct ... is disadvantages in any way in connection with ... employment or work ...’

Victorian Equal Opportunity Act (1984)

Section 20 - Unlawful Sexual Harassment:

20(l) ‘... It is unlawful for an employer or supervisor of another person -

(a) to make it appear to that person -

(i) that the other person will be disadvantaged in or in relation to any educational activities . . . if that person does not accept the sexual advances of, or tolerate persistent sexual suggestions or innuendo from. the employer or supervisor, or

(ii) that the career prospects or working conditions of that other person are contingent upon....... acceptance of sexual advances or toleration of persistent sexual suggestions or innuendo from the employer or supervisor.

(b) knowingly to permit that employee

(i) to be harassed with sexual advances: or

(ii) to be importuned or harassed with persistent sexual suggestions or innuendo - by a fellow worker, whilst acting in the course of their employment.’

[13] Mr Krzywicki believed that the banter was consensual with Ms Thompson; however her evidence was that it was not. To the extent that there is a contest as to whether or not the conduct of Mr Krzywicki was unwelcome, I prefer the evidence of Ms Thompson. Whilst Ms Thompson at one stage became argumentative, Mr Krzywiki was, on occasion, evasive. I have also taken into account when considering the credit of the witnesses that Mr Krzywiki, even in retrospect, did not appear to appreciate that his conduct in the workplace was inappropriate and more so when he became Ms Thompson’s supervisor.

[14] It is clear from the definition of sexual harassment that it is the perception of the person who is the subject of the harassment which is given weight.

[15] The issue about the perception of Ms Thompson was strongly challenged in that she did not raise any claims of harassment for a long period of time and it was only when she expressed concern to her union representative that she was directed to raise a complaint to the employer.

[16] This was directly put to Ms Thompson and she answered:

PN1340

It’s just one question. I don’t want to prolong it, but just in terms of when that conversation occurred and somebody said to you, on your evidence, “Enough is enough.” How were you - - -?---They said - I was feeling stressed, anxious, emotional. I knew there was a risk of the business not believing me. I knew I was risking my job, I knew I was risking my husband’s job, I knew I was risking my credibility. I knew I was putting myself on the line.

PN1340

Your Honour, nothing further. I don’t mean to cut you off of course but - - -?---I was feeling very vulnerable.

[17] I am satisfied that Ms Thompson found the conduct of Mr Krzywicki to be unwelcome. It is disappointing that Ms Thompson felt that she could not raise these matters with the employer. Indeed, the evidence was that the sexual harassment policy was not well known, notwithstanding its existence. It was conduct, in my view, which could have constituted sexual harassment under Federal and/or State law.

[18] Against this background I find that there was a valid reason for the decision to terminate the employment of Mr Krzywicki. However was it nonetheless harsh, unjust or unreasonable?

[19] It is to the statutory tests to which I now turn.

[20] Section 387 of Act needs to be addressed:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[21] As I stated earlier I am satisfied that, having regard to the conduct of Mr Krzywicki, there was a valid reason. There is no contest in relation to the application of s.387(b)—(d). Similarly s.387(e)—(g) are not in contest in that no issue is taken which would be relevant to deciding the matter, although I have had regard to them to satisfy myself that they do not present mattes which are relevant.

[22] As to s.387(h), the only matter to which I have given some reflection is the failure of Ms Thompson to raise these matters earlier. I am not of the view that her failure to raise the matters condones the conduct or demonstrates that it was not unwelcome. The evidence of Ms Thompson, which I accept, was that it was unwelcome and that it was not until it became worse that she took the view that enough was enough. I am also of the view that the nature of, and response to, some of the incidents referred to would have created reasonable ground for Mr Krzywicki to believe that his conduct was unwelcome.

[23]
It follows that I dismiss the application. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

J. Ribbands of counsel for Mr Krzywicki.

J. McKenna of counsel on behalf of Boeing Aerostructures Australia Pty Ltd trading as

Boeing Aerostructures Australia.

Hearing details:

2014.

Melbourne:

September, 10 and 11.

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