| Summary |
PRACTICE AND PROCEDURE – Authority granted order prohibiting publication of name of applicant for 29 days, allowing applicant time to challenge decision – Name of complainant (“Z”) permanently prohibited from publication - UNJUSTIFIED DISMISSAL – Applicant dismissed after respondent investigated sexual harassment complaint Z made against him – Applicant and Z passenger operators on respondent’s train services – Z claimed during train journey, applicant touched her leg, put arm around her, grabbed her face and kissed her – Z claimed co-worker (“O”) saw applicant touching Z’s leg – Z made two statements of complaint - O provided written statement and was interviewed twice – O claimed saw applicant touching Z’s leg but that another co-worker (“S”) also on carriage – S gave statement saw nothing – Train manager (“K”) gave written statement that saw nothing unusual when checked carriages, but that Z told him not comfortable working with applicant because “acting creepy” – S and K not interviewed by respondent – Applicant agreed to stand down during investigation – Applicant dismissed – Authority noted role not to investigate specific allegations made by Z, but to consider whether respondent conducted full and fair investigation disclosing conduct capable of being regarded as serious misconduct – Found respondent’s “harassment prevention policy” applied – Found evidence to support very serious allegation must be proven to high degree of probability – Found flaws in respondent’s inquiry included: failure to interview S and K; weight given to statements and interviews of Z and O, over statements of S and K; emphasis on alleged inconsistencies or change of story by applicant while disregarding inconsistencies between statements of Z and O – Authority found inquiry inadequate, so unnecessary to consider applicant’s further claims that respondent’s policy required investigation to be conducted by operational manager, whether decision maker was in fact sole decision maker, and whether dismissal warranted as penalty even if allegations satisfactorily investigated - Found respondent’s inquiry into Z’s complaint of sexual harassment and decision to dismiss applicant not actions of fair and reasonable employer in circumstances - Dismissal unjustified – REMEDIES – Authority found given respondent’s inadequate enquiry, unable to find contributory conduct – Respondent argued reinstatement impractical because no trust and confidence in applicant, did not want to risk having applicant working alone with passengers or other employees at night and could not effectively roster applicant and Z on different lines and shifts – Authority found as 160 passenger operators worked on rosters over three different lines, must be possible to minimise likelihood of Z and applicant working together – Found could alternatively refer one to back office work – Found as respondent failed to conduct full and fair enquiry, not entitled to treat applicant as if it had proven allegations against him – Found each train had manager to supervise operators so applicant need not work alone with passengers and staff for extended period – Reinstatement ordered to former position or position no less advantageous – Authority found applicant applied for six jobs during unemployment – Found applicant not taken all reasonable steps to mitigate loss, so awarded 30 weeks lost wages, not full period – Compensation of $5,000 appropriate – Passenger operator, conductor |