Toll worker threatened to squeeze colleague's balls until he cried

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Toll worker threatened to squeeze colleague's balls until he cried

The FWC has upheld the dismissal of a Toll Transport worker for sexually harassing a colleague through a series of inappropriate text messages.

The Fair Work Commission has upheld the dismissal of a pickup and delivery driver for sexually harassing his colleague through a series of inappropriate text messages, calling his colleague a “sexy toy boy”, “bitch” and in many instances threatened to “molest” him.

Anthony Clarke, 63, was employed by Toll Transport Pty Ltd T/A Toll Transport as a local pick-up and delivery driver and accused of sexually harassing forklift driver, Robert Torres.

In one instance, Mr Clarke allegedly touched the forklift driver on the back and said, “hope my little mate push really hard of pain you suffer because of c**ts at Toll but not say old man who is mate molest you n hurt your back…am very sorry I hurt you…will be more careful when I molest you next time”

Mr Torres responded, "No molesting not good need to stop about molesting me. Also touching me or squeezing my bum at work is also not good I'm not a girl I feel unhappy, sad and I get nightmare and toyboy I don't like it." The forklift driver then complained to the company, which launched its investigation.

Commissioner Jennifer Hunt said that Mr Torres was “certainly not an innocent player in the dialogue as in the later exchanges he was playing off Mr Clarke, hoping he would advance him sums of money”. However, "it does not minimise the inappropriateness of such behaviour in or around our workplace with Toll employees".

The text messages become more vulgar and aggressive after Mr Clarke refused to lend money over to Mr Torres, “For f*ck sake you little bitch. Stop trying to fleece me…not your milking cow…no moo moo. Next time I molest you will put my hand on your little balls and squeeze them till you cry.”

Commissioner Hunt found many of Mr Clarke’s texts were “inappropriate due to the sexual statements and declarations of love to a work colleague, where no such mutual relationship of love existed".

"Further, the reference to molestation is inappropriate," she said. It is evident that Mr Torres did not welcome Mr Clarke’s conduct, which also breached the Toll’s behaviour policies and provided a valid reason for dismissal. It was determined that the dismissal was not unfair, despite procedural deficiencies.

Toll had been prepared to dismiss the forklift driver for his part in the exchanges with Mr Clarke, but "he resigned before Toll had the opportunity to dismiss him".

Toll did not adequately investigate the inappropriate touching claim

Toll was scrutinised for its handling of the inappropriate touching claim. Toll told the Commission after the substantive hearing in October last year that its HR manager for its intermodal and specialised business, Jim Challis, had been wrong when he gave evidence before the FWC on the reasons for dismissal including the inappropriate touching.

Commissioner Hunt responded that it "is the most extraordinary thing for in-house counsel to later submit that Mr Challis was 'wrong' when he gave his own evidence, answering questions from the Commission".

“Mr Challis was the decision maker. He determined that the conduct warranted dismissal. It has been, for Toll, a most embarrassing moving feast as to whether the decision to terminate Mr Clarke’s employment did or did not include findings made by Toll that Mr Clarke inappropriately touched Mr Torres in and outside of the workplace.”

Toll did not thoroughly investigatate the inappropriate touching allegations and only relied on text messages as 'evidence'. Mr Clarke criticised Toll for not interviewing three employees who took a meal break at the time when this alleged behaviour occurred and investigating into whether there was any CCTV footage available.

Therefore, the Commissioner says she doesn't accept that the inappropriate touching was a valid reason for the dismissal as it wasn't properly investigated and therefore unable to be substantiated.

Additionally, Commissioner Hunt did find a valid reason for dismissal in an offer by Mr Clarke, who was also a justice of the peace, to sign a statutory declaration excusing Mr Torres from work after saying he wanted to take a “sickie”. Mr Clarke replied with, “thu ok, we do a stat dec for you, all legit n legal, don’t tell anyone”.

Read the decision

Anthony Clarke v Toll Transport Pty Ltd T/A Toll Transport [2019] FWC 606 (4 April 2019)
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