Employment Law Series: Sexual harassment and #metoo – case update
A number of Unfair Dismissal decisions before the FWC this year confirm that the #MeToo movement is gaining traction in Australia, with employers beginning to adopt a much higher standard of what is appropriate in the workplace and taking swift action in dismissing workers engaging in inappropriate behaviour.
The #MeToo movement has encouraged victims of sexual harassment to find their voice and share their stories in attempts to reveal the prevalence of the problem. In response the FWC has taken a strict approach to sexism in the workplace following societal trends.
Homer Abarra v Toyota Motor Corporation Australia Ltd  FWC 3761 (26 June 2018)
- Abbarra was sacked as a result of excessive sexual remarks and engaging in inappropriate physical conduct with young female subordinates, including sharing his chair and massaging staff
- Abbara was an elder male and the employees subject to the inappropriate conduct were 30 years younger than him
- Mr Abarra’s argued that because the staff laughed when he made the sexual comments and did not tell him to stop, he could not have known he was offending anyone
- The FWC found that Abbara failed to conduct himself “in a manner that would be mutually respectful”, breaching “his supervisory obligations to promote team harmony, TMCA’s Workplace Relationships Policy and the Workplace Agreement” and therefore his dismissal was justified
- The FWC commented that Mr Abbara’s defence demonstrated a complete lack of remorse or recognition of the seriousness of his conduct which was “in fact a rather blatant form of benevolent sexism which has no place in the workplace”
Carmelo Sapienza v Cash in Transit Pty Ltd T /A Secure Cash  FWC 607
- Mr Sapienza’s employment was terminated after complaints were received regarding inappropriate sexual behaviour when visiting client’s premises, including hugging two female employees and asking for kisses and phone numbers
- Mr Sapienza’s asserted that he was merely being cheeky and joking around, and any physical contact was friendly and consensual. He also argued his conduct was due to his Italian heritage and being of an affectionate nature
- The FWC found that Mr Sapianza’s actions were improper, unprofessional and naïve. The FWC indicated that ignorance would not be tolerated and if Mr Sapianza didn’t know or appreciate that he engaged in inappropriate behaviour, then he ought to have
- The FWC, in this case, was willing to overlook some clear procedural deficiencies involved in Mr Sapienza’s dismissal given the gravity of the conduct
Implications for employers
- Employers should not put up with inappropriate sexual behaviour which puts the health and safety of its workplace at risk, despite attempts to justify the behaviour on the basis of culture, age or unawareness
- In the #MeToo era, with an increased public awareness of the incidence of workplace sexual harassment, employers must recognise where allegations are sexual harassment and take action to provide a safe workplace for everyone
It is apparent that #TimesUp for sexual harassment in the workplace!