Important caution for employers when dealing with alleged misconduct

A recent decision of the NSW Workers Compensation Commission has highlighted the need for employers to exercise caution and sensitivity when addressing allegations of misconduct with employees. In the case, an employee accused of sexually harassing a junior co-worker, including by allegedly telling her that his workmates think she is ‘gorgeous’ and ‘drool over’ her, was found to be entitled to compensation as a result of the way his employer initially raised the allegations with him.

The facts

In the case of Shoalhaven City Council v Booth [2019] NSWWCCPD 47, the worker was employed by the Shoalhaven City Council as a Process Control Supervisor.

On 15 November 2017, the worker telephoned a female Council Trainee Administration Officer to discuss a work matter, before allegedly telling her that she was pretty, that she could do better than her current boyfriend, and that his workmates at the depot where he worked ‘drool over’ her and think she’s ‘gorgeous’. The telephone call ended when the worker asked the Trainee whether he was making her feel uncomfortable, to which the Trainee replied in the affirmative. The worker then allegedly said: ‘I hope I won’t be up for a sexual harassment charge’. The Trainee subsequently lodged a complaint with the Council regarding the phone call.

The next day, the worker was asked to attend a brief meeting with his immediate supervisor and line manager. The worker was told that the purpose of the meeting was to let him know that the complaint had been made and that it was going to be investigated. The worker was also informed that the complaint was ‘serious’ and involved ‘sexual harassment’. The worker was not offered the assistance of a support person at the meeting, nor was he advised that such assistance was available through the Employee Assistance Program. The worker was visibly upset during the meeting.

The worker subsequently lodged a workers’ compensation claim on the basis that he suffered a psychiatric or psychological condition as a result of the way he had been treated during the meeting.

The outcome

There was no dispute that the worker suffered the psychiatric or psychological condition. Rather, the dispute centred on whether the worker had been treated unreasonably during the meeting held on 16 November.

It was found that the worker had been treated unreasonably and was therefore entitled to compensation. This was for the following key reasons:

  • the worker was not invited to have a support person at the meeting;
  • the complaint was described during the meeting as ‘sexual harassment’ and a ‘serious matter’, when instead the worker should simply have been informed that a complaint had been made and given details of the alleged words that were the subject of the complaint; and
  • the worker was not informed that assistance was available to him through the EAP, in circumstances where he was visibly distressed.
Implications for employers

The above decision highlights the need for employers to exercise caution and care when raising allegations of misconduct with employees. While the unfair dismissal laws do not impose a positive duty on employers to offer a support person to an employee when holding discussions relating to possible dismissal, the above decision indicates it is unreasonable not to make such an offer from a workers’ compensation perspective. Likewise, employers should ensure they stick to the facts when providing details of the alleged misconduct to the employee. Further, employers should offer to provide reasonable assistance to employees who may be distressed about the misconduct allegations.

Disclaimer

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

Queries

For further information please contact the author, Martin Alden, Partner – Employment, Workplace Relations & Safety, or Robert King, Partner – Employment, Workplace Relations & Safety (Brisbane)

The Author

Martin Alden

PARTNER, MELBOURNE