A recent case in the Fair Work Commission found an employee who continuously touched a female co-worker was fairly dismissed despite the co-worker not telling him to stop.
What is considered inappropriate touching in the workplace and what kind of conduct can justify a dismissal is often a difficult road to navigate. In the recent case of George Talevsi v Chalmers Industries Pty Ltd, continuously touching the shoulders and hair of a co-worker was enough to justify dismissal. Further, the age difference between the dismissed employee and his co-worker meant it was understandable for the co-worker not to make a formal complaint.
The dismissed employee, Mr Talevsi, allegedly continually invaded the personal space of a co-worker, Ms Jordan, by touching her shoulders and hair and giving “unwelcome hugs”. Ms Jordan did not believe the conduct to have a sexual nature, however it nonetheless made her feel uncomfortable. She did not make a formal complaint as she did not want Mr Talevsi to get in trouble. However, she did want the conduct to stop and informed several co-workers of the behaviour.
After learning management wanted to speak to him, Mr Talevsi repeatedly approached Ms Jordan to ask whether she had complained about him. Mr Talevsi followed her when she tried to get away from him. On one occasion, Mr Talevsi’s conduct resulted in Ms Jordan crying in the toilets.
Mr Harnden, the Chief Financial Officer of Chalmers, gave evidence that during a meeting with Mr Talevsi, Mr Talevsi became abusive and threatening towards him, thumping his desk and accusing Mr Harnden of harassment. After being told he looked unwell and should go home, Mr Talevsi said “fuck off, you don’t tell me what to fucking do. You’re not my fucking doctor”. Mr Talevsi later threatened to sue Mr Harden personally and said, “you’re treating me like a terrorist”. Mr Harnden directed Mr Talevsi to leave his office and to go home, to which Mr Talevsi refused. It was not until an ambulance arrived that Mr Talevsi left the workplace.
On 2 August 2017, Mr Talevsi was directed, at a minimum, not to enter the main building except for work purposes and not to “have chats” with other employees. Mr Talevsi breached this direction by entering the main building on 8 August 2017 to confront Ms Jordan.
Chalmers provided Mr Talevis an opportunity to justify his conduct, however he failed to do so. Consequently, Chalmers summarily dismissed Mr Talevsi.
Chalmers was held to have numerous valid reasons for dismissing Mr Talevis. Firstly, his continual touching of “a young female employee” was inappropriate. Chalmers had a duty of care towards Ms Jordan to protect her from Mr Talevis’ conduct. This duty of care justified the dismissal. The assertion that Ms Jordan had an obligation to tell Mr Talevis that she was not comfortable with his touching was rejected, as the Commission believed it was understandable that a young female may not feel able to tell a “much older man” to stop.
Secondly, the manner in which Mr Talevis communicated with Mr Harden was a valid reason for dismissal. The Commission stated that while Mr Talevis’ actions should be considered in the context of the “rough and tumble” nature of the workplace, his conduct was entirely inappropriate.
Thirdly, Mr Talevsis’ refusal to follow reasonable and lawful directions to leave Mr Harden’s office, to leave the workplace and to not enter the management building was a valid reason for dismissal.
Key issues for employers
This case suggests that inappropriate conduct is a valid reason for dismissal even if no formal complaint is made about the conduct. Employers have a duty of care to ensure the wellbeing of their employees. This justifies a proportionate response by the employer against employees who threaten the wellbeing of other employees. However, employers should be aware that just because a valid reason for dismissal exists does not mean the dismissal will not be harsh, unjust or unreasonable. Other disciplinary action should be considered, and the employee must be provided procedural fairness.