FWA has rejected an unfair dismissal claim by an employee who was terminated for comments amounting to sexual harassment and bullying, as there was a risk that the employee would re-offend.

The employee, who was 62 years old, made several comments about a co-worker including “You’d better watch this one, he is a virgin”, “If you want to take something off him, you better make sure it is something special starting with the letter V”, and referred to the co-worker as “gay”. Following an investigation, the employer terminated the employee for serious misconduct and provided three weeks’ pay in lieu of notice.

FWA found that the allegations against the employee were substantiated and the conduct was a valid reason for dismissal. The comments constituted a breach of the employer’s code of conduct on bullying and harassment and met the definition of sexual harassment adopted by the Australian Human Rights Commission.

Despite acknowledging the employee’s age, low prospects of re-employment and that there was no evidence the employee previously had difficulties with co-workers, FWA held the dismissal was not harsh, unjust or unreasonable as the:

  • employee was not contrite and believed his conduct was just “light hearted banter”;
  • conduct indicated a “mismatch” between the employee’s values and “contemporary norms about what is acceptable in the workplace”; and
  • employer had a concern that the employee was at risk of re-offending.

FWA accepted the employer’s submission that “a warning, even a final warning” to the employee would not have been sufficient to discharge its obligation to provide a safe place of work.

Graham v Bankstown District Sports Club Ltd [2012] FWA 7977