Manager loses unfair dismissal appeal after being fired for telling colleague to “show them your tits”

The Fair Work Commission has ruled a worker who brought an unfair dismissal case against his employer cannot appeal the original decision, which found the business was right to sack him over sexual harassment claims, but was entitled to $7,000 in compensation for procedural unfairness.

In November 2017 the commission ruled the former manager was entitled to $7,459 in compensation after he was dismissed from Queensland car dealer Cricks Volkswagen.

The dismissal had come about after the business investigated claims from another employee that the manager had told a young sales staff member to “just show them your tits” when she expressed concerns about dealing with customers making rude and sexist comments.

The commission also heard claims the manager told the same young sales staff member he would “backhand” her if she ever called him “that finance guy”.

In deciding the case, Commissioner Spencer found the business would have had a valid reason for dismissal, but by not allowing the worker to respond to allegations immediately after they had occurred, he was denied procedural fairness.

He was granted compensation on the basis of the wage he would have received if proper procedure had been followed before he was dismissed.

However, the applicant then requested leave to appeal the decision, arguing there was bias against him in the original case and the commissioner had made errors of fact.

In his appeal, the worker claimed “it is widely accepted in law that a complainant’s testimony cannot be solely relied upon as fact in a case of sexual harassment. And in order for the testimony to be entered into evidence it generally must be reported immediately”, questioning whether the evidence of the young sales staff member should have been taken as fact.

The worker claimed the decision went to “the very very heart of the inequality in these cases of men versus women”.

However, the full bench of the Fair Work Commission, headed up by Fair Work Commissioner Justice Iain Ross, did not give leave to appeal.

They found the standard of proof in these cases was on the balance of probabilities, which the commissioner had followed in the original decision.

They also found there was no overarching reason to review the case decision.

“We are not persuaded that the Appellant has established that it is in the public interest to grant permission to appeal,” they found.

SmartCompany contacted Cricks Volkswagen for comment on the decision but did not receive a response prior to publication. The worker could not be contacted for comment.

Hurdle for unfair dismissal appeals strong

Workplace laywer Peter Vitale says the rejection of a right to appeal in this case shows those claiming unfair dismissal have “more significant hurdles” to jump when asking for a case decision to be reviewed.

However, he observes that while a majority of unfair dismissal claims are settled before they get to a commissioner’s hearing, a business has no choice but to spend time and money preparing a case if an employee decides to pursue it.

“It is a compulsory process in that sense,” he says.

This decision suggests the Fair Work Commission found there were “no issues of great significance” which would have allowed the worker to have their case reviewed.

However, he says for the business in this case there would have still been “an amount of preparation required” after the employee appealed the decision, which would have dragged the situation out given the original hearing was in November and the final decision about an appeal was handed down in January.

While employers see the value in settling cases before they get to hearings, they have no choice but to respond if employees would rather take the situation all the way to a hearing.

“If the employee feels strongly enough to pursue it, that’s his or her prerogative.” 

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