I want to have s*x with your sister, worker tells colleague

Cases

I want to have s*x with your sister, worker tells colleague

A man who asked a co-worker to kiss him, and told another colleague he'd like to have sex with his sister, was justifiably dismissed for serious misconduct, the FWC has ruled.

An employee who sexually harassed co-workers and made sexual comments about one of their relatives was validly dismissed for misconduct, a tribunal has ruled.

He had already received a final warning before these incidents occurred.

Five complaints


Peter Heesom had been employed for about two years. He was on an “absolutely final written warning” when his employer received complaints that he had made inappropriate sexual comments to co-workers.

There were five separate complaints:
  • that he asked a female employee to kiss him
  • that he made lewd comments about the same woman performing s*x acts
  • that he told the woman that he and another female employee were going to sit around in their underwear after work and discuss their feelings
  • that he told a male employee that he would like to have s*x with his sister
  • that he asked another man whether he had a good-looking girlfriend and then said he would like to “tap that”
The employer investigated the complaints, some of which were statutory declarations, and found three of them substantiated. It dismissed him for misconduct.

Mr Heesom denied the misconduct and claimed that he was being set up and that the employer had manufactured the complaints. He also claimed that he was bullied by his manager. The manager denied bullying him, but said that he had raised issues about job performance with him.

The Fair Work Commission described Mr Heesom as “not an impressive witness” (he represented himself).

Decision


From the evidence, the FWC determined as follows:
  • he did ask the co-worker to kiss him
  • he did tell her that he was going to sit around in his underwear
  • he did tell a co-worker he would like to f*ck his sister
Therefore, his conduct amounted to sexual harassment and a breach of the employer’s code of conduct. The comment about the co-worker’s sister was sexual harassment of the co-worker. In each case, the employer’s evidence was much more credible than Mr Heesom’s.

The other two complaints were not substantiated.

The employer could not have concocted the complaints as retaliation for his claim of bullying because the latter occurred after the complaints were made.

That he had already received a final warning threatening dismissal for any further misconduct was also relevant.

The employer had implemented the dismissal in a procedurally fair manner.

For all the above reasons, the dismissal was justified and not unfair.

The bottom line: The employee’s attempted defence that some of the affected co-workers did not complain about his conduct did not alter the fact it had offended them. By the “reasonable person” standard, the conduct was still sexual harassment and serious misconduct, because it was unwanted and had the obvious capacity to offend.

In other respects, this was a straightforward case of the employee’s evidence being much less credible than the employer’s.

Read the judgment


Heesom v Vegco Pty Ltd t/a One Harvest [2019] FWC 1664, 14 March 2019


 
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