A recent NSW Industrial Relations Commission decision involving sexual harassment at a Christmas party stresses the importance of treating employees fairly.

Public Service Association and Professional Officers' Association amalgamated Union of New South Wales (on behalf of Andrew McCaskill) and Department of Attorney General and Justice [2014] NSWIRComm 1009

Last month, the Industrial Relations Commission handed down a decision reinstating Mr McCaskill, an employee of the NSW Attorney General and Justice Department, after he was dismissed for events occurring at the Department’s 2012 Christmas Party.

Mr McCaskill consumed 14-15 standard drinks, on an empty stomach, within a 2.5 hour period at the Christmas party. Mr McCaskill then proceeded to inappropriately touch five female Departmental employees at the party. He also informed another employee that she was not successful in applying for a different position within the Department (information that was confidential at the time).

The Department dismissed Mr McCaskill for his behaviour following an investigation that only concluded twelve months after the Christmas party occurred. Mr McCaskill, perhaps unsurprisingly, challenged the fairness of the dismissal under the Industrial Relations Act 1996 (NSW).

The Commission accepted that Mr McCaskill was acting in good humour and did not mean to sexually harass his work colleagues. The Commission nonetheless regarded Mr McCaskill’s conduct as deplorable.

However, the Commission did acknowledge that Mr McCaskill had a good disciplinary record over 20 years working at the Department. Mr McCaskill was also genuinely remorseful for his actions and willing to apologise to the women concerned.

More importantly however, the Commission noted that another Department employee, who was more senior than Mr McCaskill, had also inappropriately touched two women in a similar manner at the same Christmas party. That senior employee was in a managerial role, suggesting he should be more alert to the inappropriate nature of his conduct, and therefore held to a higher standard, but was only demoted by the Department for his actions.

The Commission accepted that the Department’s disciplinary process for both employees complied with its internal policies and procedures, and was objectively fair and reasonable. However, the Commission nonetheless held that the differential treatment of the two employees was not justified, and that accordingly Mr McCaskill’s dismissal was harsh.

The Commission ordered the Department to reinstate Mr McCaskill on the basis that he had continued to work for the Department for twelve months after the relevant incidents occurred, he would have little interaction with the women concerned, and two of his supervisors had endorsed his reinstatement.

However, the Commission also made orders that Mr McCaskill be demoted for his actions, bringing his punishment in line with the other senior employee, and that the reinstatement be conditional upon:

  • a warning letter being placed on Mr McCaskill’s file;
  • Mr McCaskill apologising in writing to the women concerned; and
  • Mr McCaskill attending sexual harassment training.

It is worth noting that these orders were made under the Commission’s powers under the Industrial Relations Act 1996 (VIC), which applied because Mr McCaskill was an employee of the NSW Government. The Fair Work Act 2009 (Cth) allows the Fair Work Commission to either reinstate the applicant to his or her former position, or otherwise to another position on terms and conditions no less favourable than those on which the applicant was previously employed. It is Russell Kennedy’s view that the Fair Work Commission is unlikely to have the power to make the same type of orders as was made by the Industrial Relations Commission in this case.

Nevertheless, in light of this decision employers should take care to:

  • avoid blindly applying internal policies and procedures at the expense of fairness;
  • avoid discriminating between employees unless there are genuine, and fair, circumstances warranting such discrimination; and
  • provide staff with written policies outlining what behaviour is, and is not, acceptable at work functions.

Failing to do so can undermine the validity of disciplinary action taken against an employee, and also open the employer up to allegations its actions are improperly motivated.