Employee Unfairly Dismissed Over a Sexual Comment and Pink Hair
In Paula Jane Allen v Kandeena Pty Ltd as Trustee for the Rasmussen Family Trust  FWC 761, the Fair Work Commission (the FWC) found that a dismissal for four separate breaches of the employer’s workplace policies was unfair because the employer’s policies were inconsistently enforced.
On 7 May 2019, Ms Paula Allen made an application to the FWC against Kandeena Pty Ltd (the Respondent), the operator of the Rockhampton Puma service station alleging that she had been unfairly dismissed pursuant to section 394 of the Fair Work Act 2009 (Cth) (the FW Act).
Whether a Casual Employee Meets the Minimum Employment Period
Firstly, the Respondent submitted that Ms Allen as a casual employee had not completed the applicable minimum period of employment under section 383 of the FW Act, and was therefore not a person protected from unfair dismissal.
The FWC established that Ms Allen’s casual employment commenced with the Respondent in 2014 and continued on a regular and systematic basis through until 2 May 2019. Ms Allen had an expectation for ongoing work, and was regularly rostered to work a minimum of two shifts per week, and was working more than that. The FWC held that Ms Allen had met the minimum employment period of six months, and as such, was a person protected from unfair dismissal.
Whether the Dismissal Was Harsh, Unjust or Unreasonable
On 2 May 2019, the Respondent met with Ms Allen and presented her with four separate breaches of the Respondent’s workplace policies, namely:
- using her mobile phone and reading magazines;
- having pink dyed hair;
- sexual misconduct; and
- defaming the Respondent.
Due to these breaches, the Respondent terminated Ms Allen’s employment. Ms Allen maintained that she learnt of the breaches for the first time during the meeting on 2 May 2019 and that nothing had been provided in writing. She claimed that she was not afforded procedural fairness, nor given an opportunity to rectify allegations made against her. The FWC examined the four alleged breaches.
Mobile Phone Usage and Reading a Magazine
The FWC found that Ms Allen had a valid reason to use her mobile phone the day of the alleged use. Therefore, Ms Allen’s use of the mobile phone was not a valid reason for the dismissal. There was also other appropriate disciplinary action that the Respondent could have taken relevant to the breach of the Respondent’s policy. Moreover, The FWC noted that the Respondent would ordinarily discipline employees over this kind of policy breach.
The FWC also found that Ms Allen spent considerable time reading a magazine, and this was a deliberate breach of the Respondent’s policy. However, the FWC does not consider it to be a valid reason for the dismissal in light of other appropriate disciplinary action the Respondent could have taken to address this breach.
Pink Dyed Hair
The FWC found that Ms Allen was made aware that her pink hair colour caused concern to her employer for the first time a couple of weeks before her dismissal. However, given Ms Allen had her hair dyed for many years and it had not earlier been addressed, the FWC considered that it was not a substantial breach of the Respondent’s relatively new policy to justify dismissal. Moreover, the FWC noted that if Ms AlLen had known that her pink dyed hair was in breach of the Respondent policies, she would have changed it. Therefore, the FWC found that Ms Allen’s pink dyed hair was not a valid reason for the dismissal.
On 3 April 2019, comments were made by a colleague of Ms Allen, Ms Vicki Moore, regarding a young male customer. It was alleged that Ms Moore had told the customer to take his shirt off, and following this, Ms Moore said words to the effect, ‘I wouldn’t mind him coming between my legs, he would just have to clean out the cobwebs’. Ms Allen was there, and it was reported that she stated either, “Oh yeah” or “Hell yeah” in response to Ms Moore’s comment. During the hearing, Ms Allen first stated that she could not recall stating those words, and later stated that she negated denied saying them. She stated that she was only laughing at Ms Moore’s comments.
The FWC found that Ms Allen did say either, ‘Oh yeah’ or ‘Hell yeah’ in response to Ms Moore’s statement. However, the FWC did not accept that it constitutes a valid reason for the dismissal, particularly in light of the Respondent’s failure to address Ms Moore’s more vulgar comment. The FWC noted that ‘the unfairness in dismissing Ms Allen over her statement while leaving Ms Moore as an untouchable employee assists in the consideration as to whether the dismissal was harsh, unjust and unreasonable’. It appeared that the Respondent’s zero tolerance for sexual misconduct in its workplace was not enforced.
Defaming the Respondent
It was alleged that Ms Allen made explicit comments to a young colleague regarding the Respondent, and how the Respondent had ‘fucked [her] shoulders’. Ms Allen told her colleague that she was seeing a lawyer, that ‘this place was so much better before [the Respondent] took over’ and that the Respondent may ‘not be here in November’. The employee who made the allegation stated that Ms Allen had told her not to repeat any of those comments, and it made the employee feel uncomfortable.
The FWC found that Ms Allen appropriately disclosed to the younger worker that she was unable to share some of the tasks asked of her by the other worker. She did so by explaining her workers compensation injury. Even in light of the Respondent’s stated policy not to discuss such matters, the FWC did not consider it was inappropriate for Ms Allen to tell the story of her workers compensation injury. In terms of Ms Allen saying that she was suing the Respondent, the FWC stated that when an employee brings a claim of workers compensation, they have a right to continue proceedings, including at common law. The FWC did not find that Ms Allen was speaking inappropriately to the younger worker on this issue.
The FWC had regard to how the allegations were put to Ms Allen during the meeting on 2 May 2019. The FWC observed that Ms Allen made admissions concerning her hair colour, and offered to alter it. She made admissions relevant to the mobile phone and magazines, and also in relation to her limited involvement in the sexual harassment. However, she denied the conversation as it was pretended to have occurred, with the younger worker.
The FWC found that Ms Allen’s lies on this issue did constitute a valid reason for the dismissal. The FWC noted that ‘an employer should be able to expect that its employees do not tell untruths when difficult conversations are held with them’. The FWC found that Ms Allen’s failure to acknowledge the conversation with the younger worker, and her denial of the statements which the FWC accepted she made constituted a valid reason for her dismissal.
Despite the Respondent’s failure to afford Ms Allen procedural fairness by allowing her to read at least the breach notices, the FWC determined that Ms Allen was notified of the reasons for the dismissal.
However, having regard to all of the considerations in section 387 of the Act, and despite there being two valid reasons for the dismissal, – one for lying about the conversation with the young worker and the other one for having a secret preferential shift arrangement, – the FWC found that the dismissal was harsh, unjust and unreasonable and ordered the Respondent to pay 15.5 weeks’ pay as unfair dismissal compensation with a 30 per cent deduction for the misconduct.
If the Respondent would have complied with their own workplace policies, it seems that the FWC would have been more inclined to find the dismissal was not unfair.