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Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 77, 5 April 2005
In a recent unfair dismissal case, the Australian Industrial Relations Commission reinstated an employee who engaged in sexual harassment on a work related field trip on the basis that the conduct occurred in circumstances that were of a 'private nature'.
This decision creates confusion for employers. Under sexual harassment laws, employers are obliged to address allegations of sexual harassment, which extends to 'work-related functions' (a term interpreted broadly under these laws). If employers fail to do so, they are exposed to sexual harassment claims by the complainant. However, if employers do act on such conduct and dismiss an employee in these circumstances, they risk an unfair dismissal claim by the employee.
Anthony Tichy v Department of Justice - Corrections Victoria involved an employee who groped a female colleague on a work field trip. The employees concerned worked as dog handlers and prison officers for the Department. The employees travelled to Sale to conduct a prison search as part of their work duties. Overnight accommodation in Sale was provided by the Department. The alleged conduct occurred on the evening prior to the search, when the employees were off duty. One group of employees (including Mr Tichy) went out to dinner. They were later joined by another group (including the complainant), who had travelled to Sale later in the day. These employees didn’t eat dinner at the restaurant but drank alcohol with the others. When the restaurant closed, the group went to a gambling venue where further alcohol was consumed.
There were three incidents of alleged sexual harassment. The first incident occurred at the gambling venue. The group joked that the female prison officer had been sent to spy on them. Mr Tichy suggested she was wearing a 'wire' and attempted to 'pat down' the employee, including putting his hand near her breasts. The female employee brushed away Mr Tichy’s hand and said "that's not on". The second and third incidents occurred when the group was walking back to their motel. Mr Tichy put his hand on the female employee’s bottom and said "you're not gay are you?" Mr Tichy later put his hand down the back of the female employee's pants and grabbed her underwear. Mr Tichy did not recall these incidents, as he was intoxicated.
The Commission found that these incidents amounted to sexual harassment, however, there was an insufficient nexus between the incidents and the employment relationship. The Commission considered that while the employees were in Sale to perform work duties the following day and the employer provided accommodation, the incidents occurred when the employees were off duty, out of uniform and away from the employer-provided accommodation. The Commission also noted that the employees went to a number of venues and attendance was not required or sanctioned by management. Accordingly, the Commission found that the employees were not placed in proximity by the employer, but by their own choice. The Commission concluded that the sexual harassment occurred in circumstances that were 'private in nature' and accordingly, did not constitute a valid reason for termination. Mr Tichy was reinstated with back pay.
The decision is at odds with a decision of the Commission on appeal in 2002 when GrainCorp Operations Limited dismissed an employee in similar circumstances. In that case the Commission held that the conduct did establish the necessary nexus with the employment relationship. The decision was supported by the Human Rights and Equal Opportunity Commission. Together the two cases demonstrate that the line between private conduct and employment-connected conduct is not always easy to draw.
Further, the cases highlight the risks associated with dismissing an employee for harassment where the conduct occurs outside the workplace. Employers should not, however, ignore harassment that occurs in these circumstances. On the contrary, employers have obligations under anti-discrimination laws to investigate and address such conduct.
HR Tips
In order to minimise risks under both unfair dismissal and sexual harassment laws employers should:
| Leigh Johns Partner Australian Business Lawyers |
Nicole Willmott Senior Associate Australian Business Lawyers |
