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    Worker unfairly dismissed over sexual harassment claims

    Worker Unfair Dismissal Sexual Harassment

     A worker, sacked for allegedly sexually harassing a 19-year-old female Trainee and making sexually suggestive comments to her, has been reinstated after the Fair Work Commission found the Trainee's evidence was unreliable and that the female Trainee had herself discussed personal sexual matters in front of other employees.

    Anglo American (Anglo) is the second largest Australian and third largest global export metallurgical coal producer operating the Moranbah North underground longwall mine in Central Queensland.

    At the time of his dismissal, the worker was employed as a Technician at Anglo’s Moranbah North Mine (the Mine). Anglo alleged that the Technician had engaged in “unwelcomed and uninvited physical contact, including ‘slapping’ the female trainee on the backside… remarks and insinuations about the female trainee’s sex life… and sexually explicit conversation including sexual innuendos.”   

    Anglo American dismissed the mine technician for breaching its sexual harassment policy.

    The Technician emphatically denied the allegations and sought reinstatement, compensation for lost wages and continuity of service.

    Background

    The 19 year old Trainee was the first female trainee employed at Anglo’s underground mine in central Queensland and the Technician was a middle aged man who had worked at the Mine for approximately seven years.

    Whilst there were some female employees at the Mine, it was a predominately male workforce. There was also evidence that other women had worked successfully underground.

    One month after her resignation the Trainee was invited to attend an exit interview. Whilst these interviews were commonly conducted to obtain feedback, the Trainee was invited to attend in-person. There had been rumours at the Mine that inappropriate conduct had occurred towards the female Trainee and that this conduct may have resulted in her resignation.

    During this interview, the Trainee made four separate allegations of improper conduct against the Technician. Specifically, the Trainee alleged the Technician deliberately “patted”, “slapped” or touched her "backside" while they were performing work in a confined space (a man cage), and on another occasion, in response to her talking about problems with her boyfriend, he allegedly said “you can come and live with me and you won't have to pay any rent so long as you like gardening and sex and helping around the house”.

    The Technician denied making any kind of sexual innuendo towards the trainee and said that when working in the ‘man cage’, it was "inevitable" that some parts of his and the trainee's body would have come into contact in a confined space, but that he didn't deliberately touch her backside.

    FWC not satisfied it was ‘groping’ was deliberate

    Anglo’s internal HR investigator was satisfied the groping occurred after talking to other crew members who separately recalled the trainee telling them about the incident at the time and that she had been reluctant in making the complaint.

    However the Commissioner later said the fact the trainee told several people that the Technician had groped her at the time "does not render more probable the fact that he made the contact". On cross-examination, the trainee had failed to give "clear and cogent" evidence that the contact had been deliberate. The Commissioner said it was reasonable to conclude that "inadvertent contact" did occur, but the Commissioner was not satisfied it was deliberate.

    Relying on facial expression was "inexact proof" of ‘gardening and sex’ comments

    Anglo’s internal investigator had rejected the Technician’s denials about making the "gardening and sex" comment after noting in her report that the Technician “froze” and paused to consider his response when he was initially asked for his response to the allegation. The investigator considered his facial expression showed surprise or shock that the employer "knew" of the alleged incident. The HR investigator said that she was “satisfied that [the Technician’s] demeanour, facial expression and delay in responding to the question regarding this allegation are inconsistent with his later denial regarding this allegation, such that his denial is not accepted”.

    However the Commissioner found the evidence in relation to the, “gardening and sex,” comment was not made out as relying on facial expression was an "inexact proof" and, in a case where the pair were the only parties to the conversation, found the Trainee's evidence "not convincing".

    Graphic talk of sex life

    As part of his defence the Technician said that he regularly heard the trainee speak in graphic terms about the sexual activity she had undertaken or was planning to engage in with her boyfriend. Specifically, in relation to the nature of her comments, the Technician stated that there was definitely banter at the Mine and that swearing was fairly common, however he distinguished the comments of the Trainee about her personal sexual activity from anything that he had heard at work. 

    The Commission also heard evidence that Anglo had to have a discussion with the Trainee regarding the language she had been using underground, in circumstances where her male colleagues had reported the Trainee’s swearing and discussing personal sexual matters in front of other employees and that it had made them feel embarrassed.

    “A bit of a gutter mouth"

    A witness claimed the trainee had “out of the blue,” said words to the effect of, “it’s steak and headjob night next Tuesday at my place”.

    The witness said the Trainee then went on to talk about sex toys and her comments made him feel uncomfortable and he had left the lunchroom with about six other colleagues.

    Another witness said the conversation he overheard sounded, “a bit ordinary,” and that the Trainee "had a bit of a gutter mouth".

    When Anglo’s HR Coordinator spoke informally to the Trainee about her language, she conceded she had used such language in an effort to, “try and fit in with the crew.”

    Procedural fairness

    The Commissioner also heard evidence that, during the course of the investigation, the Trainee was provided with a copy of an earlier incident report, however the report was not provided to the Technician. The Commissioner said that this was an issue of procedural fairness, that in using this report, the Trainee was able to provide times and dates of the alleged incidents.

    Heightened duty of care with regard to all trainees

    There was also evidence that the Trainee had, on occasion slept underground and that she was struggling with the physicality of the job. The Trainee had also complained, as the first female trainee, about the toilet facilities underground and that she had been seen when going to the toilet behind a truck. There was evidence that she had also incurred an injury.

    The Commissioner found that there was “an absence of evidence that Anglo Amercian had checked how the Trainee was discharging her duties and, in terms of Anglo’s duty of care, there was also “an absence of evidence of monitoring”.

    The Commissioner said this case has highlighted the need for Anglo American to more closely oversee its trainees progress. This is particularly in circumstances where the Anglo could be held vicariously liable for the conduct, as alleged, in this matter.

    The Commissioner said that Anglo’s management clearly has a heightened duty of care with regard to all trainees, particularly in a situation where they had information from co-workers that the Trainee required assistance. “Further training, mentoring and discussions by human resources officers were warranted steps that did not occur,” said the Commissioner.

    Condoning sexual harassment at a workplace

    In handing down her decision, the Commissioner warned that "in the current environment of sexual harassment allegations, it is necessary to comment that nothing in this decision should be construed as condoning sexual harassment at a workplace in any way".

    The Commissioner said “a separate set of rules is not required for female trainees to be successful in the underground mine setting; certainly equivalent opportunities are being provided to female trainees and this Decision does not aim to impede such. Examples of women working successfully underground were referred to, by the miners giving evidence”.

    Lessons for Employers

    • Sexual harassment allegations are among the most difficult for employers to investigate; however, there is no alternative but to do so promptly, sensitively and lawfully.
    • Employers are legally obligated to take seriously all complaints of sexual harassment.
    • Poorly framed notice of the allegations, inadequate evidence, pre-determined decisions – are just some of the elements that can derail a workplace investigation. It's important that the i's are dotted and the t's are crossed when conducting a workplace investigation.
    • The person appointed to undertake a workplace investigation must have the appropriate skills and experience to do so and must be neutral, objective and free from any perceived bias.

    Savvy HR provides independent workplace investigations to a high standard of procedural and substantive fairness, intellectual rigour and sensitivity We use our HR know-how and investigation experience to support clients to deal with informal complaints through to conducting formal site-based investigations.

    "I recommended Craig to conduct an independent factual investigation. The client could not have asked for a better response from Craig in terms of process, timeliness and efficiency. His methodology was superb, and his final report was outstanding in terms of coverage of the issues and as a reference tool upon which the client could manage complaint outcomes. The client made it clear to me that they were very happy with the referral and the service provided by Craig throughout the investigation, indicated further by their ongoing retainer of him to provide additional HR services". Employment Law Partner – Hopgood Ganim

    Wilson v Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American (U2017/5606)

    Disclosure: Savvy Human Resources Associates Pty Ltd (SavvyHR) has performed work for Anglo America Coal in Australia and South Africa.

    This publication is provided by way of general guidance only and is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances.

     

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