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Consistency is key in dismissing inappropriate employee

A NSW public servant has been reinstated following an incident at a work Christmas party where he inappropriately touched five female colleagues. The Industrial Relations Commission (IRC) found that the penalty of dismissal meted out to the Applicant was harsh when assessed against the penalty meted out to a more senior male colleague who had also engaged in misconduct of a similar nature.

The issue

Mr McCaskill was employed by the Department of Attorney General and Justice as a full-time Project Officer (Policy & Client Services). He had worked in a number of positions within the department for a period of approximately 20 years.

On 13 December 2012, Ms G lodged a complaint with regards to the inappropriate conduct of Mr McCaskill and her line Manager, Mr Cooke at a work Christmas Party on 7 December 2012. The allegation was Mr McCaskil squeezed one of Ms I’s breasts for a couple of seconds then squeezed one of Ms G’s breasts for two or three seconds. He had then lowered his head to her breast level, causing Ms G to object vocally and emphatically. He touched Ms I’s breast again and said ‘Hers are better’, then stepped back. Earlier in the evening, Mr McCaskill had approached Sheriff Officer DB from behind and squeezed her on the breast. He also touched Sheriff Officer K on the breast. At the party, McCaskill had also disclosed confidential information to Ms B to the effect that she had not been successful in her application for a position with a Tribunal although the recruitment process had not been finalised and the provision of such advice was not part of his usual duties. It was also alleged that during this conversation Mr McCaskill had placed his head on the chest of Ms B.

Mr McCaskill reported he had earlier consumed two bottles of white wine and 1-2 glasses of red wine on an empty stomach and conceded he was intoxicated by the time the incident occurred – claiming his intoxication impaired his level of judgement. While he believed he had touched the women with their consent, he conceded it was likely he had not asked for their permission at the time of the incident. Mr McCaskill expressed remorse but noted that what he did, as a gay male, was in good humour.

An investigation into the allegations of misconduct against Mr McCaskill concluded his behaviour constituted a breach of the Code of Conduct, Departmental policies and guidelines and was contrary to his role. On 5 September 2013, Mr McCaskill was found guilty of misconduct, and on 20 December 2013 he was notified of his termination by letter from the Director General.

Mr McCaskill acknowledged his actions were deplorable, but argued that his dismissal was harsh, unjust and/or unreasonable given that a senior manager, Mr Cooke, who had behaved in a similar fashion at the same party, had been dealt a lesser punishment by being demoted.

The decision

The unfair dismissal case was heard in the NSW Industrial Relations Commission before Commissioner Tabbaa, who found Mr McCaskill had been treated more harshly than a senior manager, Mr Cooke, who had been demoted for his misconduct. Commissioner Tabbaa stated although Mr McCaskill’s conduct did not involve predatory sexual behaviour, the conduct of both Mr McCaskill and Mr Cooke was “deplorable, unsolicited and had the potential to undermine the integrity and reputation of the Department”.

The fact Mr Cooke had inappropriately touched two women and Mr McCaskill touched five was according to Commissioner Tabbaa “neither here nor there – it was one woman too many!” The Commissioner also stated the claim they were gay was not an excuse for such unwarranted behaviour, since in this day and age it goes without saying that one does not invade the space of another person or touch another person without permission, especially not in any function associated with the workplace.

Commissioner Tabbaa took into consideration the fact Mr McCaskill had consumed 14-15 standard drinks on an empty stomach within a 2.5 period, inhibiting his capacity to discern between appropriate and inappropriate conduct. In addition, his personnel file contained no information suggesting previous incidents or concerns about his performance, conduct or behaviour. The Commissioner was also compelled by evidence from Mr McCaskill of personal and financial reasons as to why he would be willing to comply with any disciplinary measure other than dismissal.

Given Mr McCaskill did not supervise any staff, whereas Mr Cooke was more senior and was involved in day to day human resources management of the staff he supervised, Commissioner Tabbaa found the penalty of dismissal meted out to Mr McCaskill was harsh when assessed against the penalty meted out to Mr Cooke.

Commissioner Tabbaa made orders for Mr McCaskill to be reinstated in his previous position on the same terms and conditions, with the conditions:

– His rate of pay be on the base increment;

– His salary commence from the date of reinstatement and no back payment be made.

The Commissioner also subject him to:

– A final warning letter placed on his personnel file;

– A written apology to the five women affected;

– Participation in EEO/Sexual Harassment training

– Providing a written undertaking to his employer regarding compliance with its policies.

Implications for NSW Local Government

The decision of the NSW Industrial Relations Commission in this matter highlights the importance of disciplining employees in a consistent matter. In determining whether a dismissal is unfair under s 88 of the NSW Industrial Relations Act 1996, the Commission will compare the disciplinary measures taken to that taken with other employees who have engaged in similar misconduct. Dismissing an employee where others have been demoted for the same conduct will be likely to constitute an unfair dismissal.

The fact Mr McCaskill had no previous incidents or concerns on his personnel file worked in his favour in determining dismissal wasn’t the most appropriate option, as did his long period of employment. When dealing with employees who have engaged in repeated misconduct, it is pertinent to record this on their file so it can be proven that there was a pattern of misconduct and warnings were given in the past.

This case highlights the importance of implementing a work culture that has zero tolerance for inappropriate behaviour, as well as providing compulsory sexual harassment training programs for employees.

It is noted that although Mr McCaskill was reinstated after engaging in inappropriate conduct, other employees in a similar scenario would likely not be treated as favourably if there wasn’t inconsistency between disciplinary action taken against them and other employees.

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