Employee who Argued Sexual Harassment Allegations led to her Dismissal Fails in Unfair Dismissal Claim

The Fair Work Commission has rejected an unfair dismissal claim from a female employee who argued her termination was linked to a sexual harassment claim she had lodged; instead, accepting her unacceptable conduct in being routinely late for work justified her termination.

The employee, Miss S, was employed by Williams Adams Pty Ltd (the Company) as a used equipment inventory coordinator until her dismissal on 1 April 2022. The reasons given for her dismissal were persistently arriving late for work and failing to use the Company's time recording system.

The background to the matter dates back to early 2021, when the Company replaced its manual time-keeping system with an electronic platform, TANDA. Initially, Miss S raised an objection to using TANDA because she was concerned about the system's ability to collect biometric data. In response, the Company reviewed the biometric functionality of TANDA, determined it was not needed, and disabled it.

Miss S was advised of the decision and sent a message to her manager confirming that she would use the new system.

In August 2021, her manager was concerned about the number of times Miss S was late for work and that she repeatedly failed to record time correctly on the TANDA system. On 23 August, he gave her a letter counselling her about the concerns.

Failing to improve on her timely attendance, Miss S was issued a written warning on 15 October 2021, and a final warning on 11 November 2021. At a meeting on 25 November 2021, her manager told her that if she continued this way, she could be dismissed.

During a performance review on 3 February 2022, her manager advised her about the Company's concerns regarding her attendance. At that meeting, Miss S claimed that she was stressed because of certain rumours about her relating to a sexual harassment complaint that she had made the previous year and that this was the reason she had been arriving late for work. Her manager offered to raise the matter with human resources, but Miss S said she did not want to share the details of the complaint with her.

Unfortunately, Miss S's conduct continued to deteriorate. From 15 March to 28 March 2022, she did not record any times on TANDA and was late for work an average of 40 minutes per day. ?

A further meeting was held on 29 March 2022 with Miss S, where she was given a 'Show cause' letter which stated that the Company was considering terminating her employment. During the meeting, Miss S became belligerent, used foul language, and threatened her supervisor that she was going to bring the biggest sexual harassment case in Australian history against the Company.

After receiving a written response from Miss S, the Company informed her at a meeting on 1 April 2022 they had decided to terminate her immediately because of her consistent failure to arrive for work on time and to comply with time recording obligations. She was paid three weeks in lieu of notice.

In evidence before Deputy President Alan Colman, it emerged that the sexual harassment related to a co-worker saying to Miss S, "You must love Vic Low Loaders", a contractor to the Company. Whilst she took this to mean that she was having an affair with one of their staff, the Deputy President noted,

"I find that the remark that was the subject of Ms (S's) complaint of April 2021 was not sexual in nature … I find that the relevant words, spoken in the relevant context, did not carry any sexual or sexualised content or connotation".

Moreover, the Company was fully justified in deciding to terminate her. As he noted,

"I accept the evidence … about the reasons for which the Company terminated Ms (S's) employment. It was clear, convincing and entirely credible … She had been late for work nearly every day for four years … She acknowledged in her oral evidence that she had failed to use the TANDA system consistently. She had been repeatedly warned about both of these findings. These are obvious and inherently believable reasons why an employer would wish to terminate an employee's employment".

The application was dismissed.

Miss S v William Adams Pty Ltd - [2022] FWC 1851

For queries about attendance, time recording, procedural fairness, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300925 529 or 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.