Employee dismissed for pursuing co-worker

Cases

Employee dismissed for pursuing co-worker

An employee who was dismissed for pursuing a co-worker claimed that his conduct did not constitute sexual harassment and that his dismissal was discriminatory on the basis that he had a mental disability.

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An employee who was dismissed for pursuing a co-worker claimed that his conduct did not constitute sexual harassment and that his dismissal was discriminatory on the basis that he had a mental disability.

 

Background

The employee was persistently trying to a pursue a 'friendship' with a fellow worker. The fellow worker made it quite clear to the employee that she was only interested in a work friendship. Despite this, the employee continued to make persistent invitations for the woman to go out with him, including invitations to meet his family (Heard v Australia Post; Print R1250, [1999] 087 IRCommA).

The woman complained of the employee's behaviour and he was moved to another site, but he still persisted in calling the woman and visiting her at work. One day, after he had caused a scene in the workplace, he visited the woman at her home to apologise. The visit was uninvited.

He was warned to stay away from the woman and that she did not want to speak to him. He disregarded this warning and spoke to her and sent her a birthday card after seeking information from her former school. The employer conducted an inquiry/investigation into the employee's conduct and a decision was made to dismiss the employee.

The employee alleged that the dismissal was unfair because:

  • the pursuit of his co-worker was not unwelcome;
  • his actions were not unreasonable;
  • his conduct did not amount to serious misconduct and the penalty was therefore disproportionate to the action;
  • his behaviour was not wilful because his actions arose from a mental illness;
  • the employer's action in dismissing the employee was discriminatory on the grounds of mental disability; and
  • the employee was denied procedural fairness.

The employer submitted that the employee was dismissed for his continued and unwelcome pursuit of a co-worker. Also, the employee was dismissed for ignoring the ongoing advice from his supervisors and colleagues to desist from his pattern of behaviour and his apparent unwillingness to acknowledge the seriousness of his actions or to accept responsibility for them. The employer also had policies in place regarding harassment and a code of conduct which the employee failed to comply with.

Findings

The Australian Industrial Relations Commission found their was nothing in the evidence to support the view taken by the employee that the woman wished to pursue a relationship with him or that she encouraged him to believe that she wished to. The Commission also held that the employee's behaviour was unreasonable, stating:

"It is unreasonable to ask someone to lunch on a daily basis when such invitations are unwelcome and, except for two occasions, refused.... It was unreasonable for [the employee] to follow [the woman] around at work and question her about her telephone calls. It was unreasonable to use his access to the attendance book to obtain information about her address. It was unreasonable to give a false name when he called from overseas. It was unreasonable to make excuses to visit her workplace or telephone her after he was transferred to another workplace. It was unreasonable to turn up at her workplace and shout at her in from of other employees and customers. It was unreasonable to telephone her workplace several times a day and hang up if someone else answered."

The Commission found that the employee's behaviour was sexual harassment as it was perceived in that way by the woman and other employees. The behaviour created a hostile working environment. The employee's behaviour was in breach of the employer's harassment policy and code of conduct for employees. Further, the Commission found that the employee's behaviour amounted to misconduct.

The employee submitted that the conduct was not wilful. The Commission adopted the general rule that the intention of the alleged harasser is not relevant to determining whether the conduct amounts to sexual harassment.

On the basis of the evidence, the Commission was not satisfied that the employee's behaviour related to a mental disability or that the employer discriminated against the employee by dismissing him on the grounds of his conduct where such conduct was caused by a mental disability.

It was found that the employee was not denied procedural fairness. The employee was notified both informally and formally that his behaviour could have serious consequences. The Commission was satisfied that the employee was notified of all possible outcomes and that he was treated fairly in the process.

Finally, the Commission concluded:

"In this case the [employer] was faced with the duty of care owed to [the woman] under the Occupational Health and Safety Act, at common law, under her contract of employment and under its own harassment policy. ... At the time of the dismissal and, even after, [the employee] refused to take responsibility for his actions and the [employer], in my view, with justification saw little prospect of [the employee's] behaviour changing.

"Against this [the employee] appears to have been in need of psychiatric treatment and the [employer] failed to recognise this. At the time [the employee] also appears to have failed to recognise this. Without that recognition on the [employee's] behalf it is hard to know how the [employer] could have behaved differently. It was not suggested that the [employer] has the ability to refer [the employee] for psychiatric assessment or treatment without his consent. To have assumed that he had a psychiatric disability, in itself, may have caused the employer to fall foul of the Disability Discrimination Act."

The Commission found that the application should be dismissed.

 
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