$25K compensation for “embarrassing” sex harassment dismissal of veteran worker

A baker with 23 years of “unblemished service” has been awarded the maximum compensation for his summary dismissal over a complaint of sexual harassment, with the Fair Work Commission (FWC) unable to be satisfied the misconduct occurred despite appreciating the employer “felt they had to react strongly to the very serious allegation”.

The baker was summarily dismissed by his dessert manufacturing employer in April, on the basis that he had engaged in serious misconduct by allegedly making inappropriate comments about a co-worker in the dinner room of the employer’s New South Wales facility. The comments, made in Vietnamese to a male co-worker during the evening of 18 April 2023, were overheard by a female colleague who reported her concerns to the facility’s Operations Manager the next day. The Operations Manager’s notes regarding the discussion of 19 April indicate the complainant alleged the baker made “rude and crude” comments about the appearance of the co-worker she had been having a meal with, describing her colleague as “a big t**ted, woman with a fat ass (sic)” and that he “would like to touch her”. The complainant also informed the Operations Manager she “did not feel safe working in the same section of production as [the baker]”.

After an initial meeting between the baker and the Operations Manager on 19 April – which the baker’s wife (who remains employed with the employer) was present for – the baker was summarily dismissed on 20 April following a meeting with the General Manager and Operations Manager, despite his protestations that he had merely held a private conversation about “the singer Adele and [his] desire to lose weight” with his male colleague on 18 April, and had never made “any comments about ‘buttocks’ or ‘breasts’”.

In proceedings before the FWC, Commissioner Crawford was unable to conclude the baker had engaged in the conduct alleged, in part because the female co-worker who raised the complaint did not give evidence before the Commission, and there were “some inconsistencies” between her original verbal allegations and a subsequent email she compiled on 31 May. In addition, Commissioner Crawford noted that the baker, and his male colleague, both gave evidence under oath and were “adamant” the discussion did not occur as alleged, meaning the Commissioner was “not comfortable” concluding “two long-term employees with unblemished service, have been dishonest about what occurred”.

Although Commissioner Crawford determined there was no valid reason for dismissal and the termination was therefore unfair, he had some sympathy for the employer’s position acknowledging the General Manager and Operations Manager “felt they had to react strongly to the very serious allegation raised by [the complainant], particularly given she also raised concerns about her safety in the workplace”. Noting that a flawed process had preceded the termination, Commissioner Crawford rejected the baker’s argument it had been borne out of “some sort of plot to frame him to remove him from the business”, instead observing that “any deficiencies with the process were motivated by a desire to act quickly and decisively in response to the serious allegation”. Despite conceding the severe nature of the original complaint, Commissioner Crawford offered:

However, it is important for employees to be provided with a reasonable opportunity to defend themselves, and even very serious allegations need to be fairly investigated. That is particularly the case for an employee with nearly 23 years of unblemished service. [The baker] has worked hard for [the employer] for a very long time. He was entitled to be treated fairly and respectfully, even in the context of the serious allegation.

Turning to consider remedy, reinstatement was not sought and was determined inappropriate, owing to the fact the employment relationship has been “irreparably damaged”. Commissioner Crawford then commenced his evaluation of appropriate compensation at the highest end of the scale, surmising that the baker, had he not been dismissed, would have remained in employment at the facility until “retirement”, estimated to equate to a further ten years’ service.

In settling on the maximum compensation being appropriate, Commissioner Crawford noted procedural shortcomings including that the baker was not offered a support person during the meeting in which his employment was terminated (notwithstanding, English is the baker’s second language) and he was issued a “somewhat unorthodox termination letter” which inappropriately purported to “issue a warning and impose summary dismissal together”.

Even though the baker had failed to take “meaningful steps” to mitigate his loss since his termination, Commissioner Crawford was satisfied awarding compensation equivalent to six months’ wages was appropriate, given the baker “has lost his long-term job in embarrassing circumstances”. “The dismissal has drastically changed his life”, the Commissioner added, determining a compensation amount of $25,871.30, plus superannuation.

Ngo v Continental Patisserie Australia Pty Ltd [2023] FWC 2143 (28 August 2023)