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Man who sexually harassed a male colleague loses unfair dismissal claim

By Portner Press on April 17th, 2019
  1. Bullying, Harassment & Discrimination
  2. Sexual harassment in the workplace

What began as flirtatious texting banter between two male employees took a dark turn when one of the men started asking the other for money.

When the 63-year-old Toll delivery driver decided he had enough of the 37-year-old forklift operator’s requests, he accused him of trying to “fleece” him and threatened to behave viciously during their next sexual encounter.

While the details of the text exchanges in the hearing revealed that there was some mutual consent between the men for a period of time, the younger Philippines-born employee indicated that he felt demeaned by the last message.

In part of his response to the text, he referred to previous occasions when the older man touched him at work. “I feel unhappy, sad and I get nightmare and toyboy I don’t like it,” he said.

He reported the communication to the HR manager after which the employer conducted an investigation. The delivery driver was then dismissed for his texts that were “inappropriate, offensive, vulgar and of a sexual nature”.

However, Commissioner Jennifer Hunt found that the forklift operator was “certainly not an innocent player in the dialogue” and believed he was “playing off [the delivery driver], hoping [he] would advance him sums of money”.

The delivery driver submitted that the younger employee had found his previous text messages acceptable until he finally refused to give him more money.

Commissioner Hunt said this “might have some merit to it”, if it had not been for the “declarations [of] love” he made to the forklift operator “and then his aggressive text messaging within one hour”.

She said this entitled the employee to make a complaint of sexual harassment and “the almost immediate threat of harm” that his colleague made to him.

Despite procedural errors, the dismissal was not unfair

In a show cause letter to the delivery driver, the employer said that even though it established that he had a mutual relationship with the forklift driver, it did not minimise the “inappropriateness” of his behaviour in the workplace.

“It is the belief of Toll that what our employee’s do in their private time, which is legal and lawful is of no concern to us as the employer. However, engaging in behaviour that may place Toll into disrepute, adversely affect others or is of an inappropriate or dishonest nature cannot be condoned in an ongoing employment relationship that is required to be based on trust and confidence,” the letter stated.

Commissioner Hunt did note that the employer had failed to substantiate its inappropriate touching allegation. Also, it could not establish whether the delivery driver had been shown or understood its company Code of Practice.

However, these “procedural deficiencies are not significant enough … to contribute to a finding that the dismissal was unfair,” she said.

The employer was also prepared to dismiss the forklift driver for his involvement in the exchanges, but he resigned beforehand.

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