S-xual harassment was ‘comradery’, employee claims

By Portner Press on March 2nd, 2020
  1. Bullying, Harassment & Discrimination
  2. Sexual harassment in the workplace

In Emmanuel Montes v The Star Casino (2020), the Fair Work Commission (FWC) found that a waiter dismissed for sexual harassment had a “complete lack of understanding and/or disregard for appropriate standards of conduct in the workplace”.

A “lack of understanding” apparently so deeply ingrained he never once believed he’d done anything wrong.

When the employee finally realised he could face dismissal for his actions, he called a colleague he harassed an “imaginary whinger” and threatened to “raise HELL” for the employer.

The FWC dismissed his unfair dismissal claim.

‘Only joking’

About nine months prior to his dismissal, the waiter received a written warning for “creepy, unwanted, disgusting and inappropriate” text messages he sent to a female colleague. She resigned from the company later that month.

Eight months after, another employee made a complaint when the waiter unwelcomely commented about how attractive she was.

She said she tried to end the discussion by walking away “but he continued to say how attractive I was and that he wouldn’t want to be anywhere but underneath me nor get on the wrong side of me”.

A few weeks later, a third employee made a complaint about the waiter after he had smacked her on the backside with a serving tray. She told him she found this “extremely rude and disrespectful”. He replied “Come on, I’m only joking”.

When he was confronted by management about this, he said he only “hit her on the bum” as an afterthought when exchanging banter.

“She should have understood this in the spirit of comradery. It is inexplicable to me that it was inappropriate,” he said.

‘Take it easy with me, or I will raise HELL … and it’s my birthday’

The final nail in the coffin for the employee was his reply to an email from a female manager summoning him to a meeting.

Part of the employee’s email read:

“Thank you Dear Sir for your several attempts to contact me regarding this unfortunate episode (‘inappropriate and unprofessional behaviour’)

As you know I will be defending this claim, and am eager and keen to put this defamation to rest.

What you may not know (the reason why you were unable to contact me on several attempts) is that I have been extremely busy with the legal-medical situation regarding my spouse, who suffered a heart attack in December of 2016, and that I am liaising and commuting on an almost daily basis with groups such as NDIS (the National Disability Insurance Scheme), advocacy groups, and the aged care residency at which she has been forced to stay (NH Aged Care Residency: ‘New Horizons’)

Please take it easy with Me at tomorrow’s hearing, I have been carrying a superhuman effort for two and a half years. Otherwise I will raise HELL for THE STAR. Please keep in mind that I’m not just fighting for my reputation, I am fighting for my wife’s life. My word reveals a tendency to become law over the years.

And I’m certainly not going to let the claim of some imaginary whinger stand in the way of that fight!

The complainant’s claim is frivolous and has no merit. Sarah either set me up or she set herself up, but she set somebody up. Why she did that is inexplicable to myself, but I can explain it to you, and anyone who cares to hear it.

Oh, and another reason why you should take it easy on Me tomorrow is because tomorrow is my birthday (the 22nd of August), and I have been working with You and for You, for Three Years. What the Fuck! What a way to say Thank You!”

The employee was subsequently dismissed.

Employee had ‘absolutely no understanding’

“In relation to each of the complaints, [the employee’s] conduct was unacceptable,” FWC Deputy President Lyndall Dean said.

“The conduct standards in the workplace were known to him. He had received a warning about his conduct only a few weeks after he commenced employment.

“At the time of his dismissal, and during the hearing, he demonstrated absolutely no understanding that his conduct was not appropriate in a workplace.

“I am satisfied that the dismissal of [the employee] was not unfair.

“Accordingly, the application is dismissed.”

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