Scott Matthew Ashburner v St Marys Rugby League Club Ltd [2024] FWC 246 (30 January 2024)

Facts

The employer, St Marys Rugby League Club, dismissed an employee, Scott Matthew Ashburner, after he bullied, sexually harassed and swore at four female employees.

The employee repeatedly swore at his colleagues and was counselled by his managers in relation to his behaviour.

The employee continuously argued with a colleague and complained to HR that the colleague spread false sexualised rumours about him.

The colleague also complained to HR about a comment made by the employee, “why don’t you go get molested..” which led to a meeting with HR, during which HR gave him a letter about this comment, his latest argument with the colleague and directed him to attend another meeting. The employee then filed a written complaint about the colleague to HR.

At this next meeting, the employer summarily dismissed the employee and gave him a letter which backdated the termination of his employment to the previous day.

Findings

The employer’s HR manager conceded his failure to investigate the molestation comment, warn the employee that dismissal was a potential outcome of a disciplinary action, or give the employee an opportunity to respond.

The Fair Work Commission (FWC) found that the employer did not notify the employee that his molestation comment constituted misconduct and failed to clearly communicate and explain its reasons for dismissal to the employee.

The FWC found that the employer failed to address the rising tension between the employee and his colleague which factored into the harshness of the dismissal.

The FWC ruled that the employee’s molestation comment amounted to sexual harassment under the employer’s policy and swearing at his colleagues amounted to bullying and were valid reasons for dismissal. However, the employer’s failure to execute a consistent, transparent dismissal process rendered the dismissal unfair.

Lessons for Employers:

• Ensure that there are clear and comprehensive processes and policies in place to deal with dismissal and conflict between employees
• An employer may have valid reasons to dismiss an employee but the failure to afford procedural fairness to the employee can render the dismissal harsh, unjust or unreasonable, and therefore unfair.
• Where an employee has made a complaint about another employee, the employer must conduct a thorough investigation into the complaint, keep the parties informed and give the parties opportunities to respond.
• Where possible disciplinary action is taken against an employee, the employer must be transparent about the process, keep him/her informed of the process and outcomes, including dismissal
• An employer should meet with an employee to be dismissed to communicate and explain its reasons for dismissal and give the employee an opportunity to respond and ask any questions.

If you would like to discuss these or other workplace issues, please contact Andrew Bland or call 02 9412 3077.