A Calvary Hospital office worker, who was sacked after an investigation found he sexually harassed his colleague while at work, has lost an unfair dismissal claim against his employer. It had been alleged that at about 1pm on May 19, 2016, the man, an administrative employee, invited his co-worker for a cigarette and to see his new office, which was under construction. The woman alleged that when they got to the new office, he started playing with the blinds as if to close them, and invited her inside. The woman said she declined and walked away. “[The man] said my name while I was walking away from him down the corridor, I stopped and turned around and found him standing very close to me and then he aggressively grabbed my left arm. “He then grabbed my hips with both of his hands and tried to convince me to meet up with him that weekend … he also repeated “It’s ok”, “don’t worry”, “don’t be scared”, “let’s catch up”.” The man, who started at Calvary in September 2014 having transferred from the Canberra Hospital, denied fully the allegations. He said he never invited the woman for a cigarette, and that it was her who had asked him if she could see the new work area. On June 9, the hospital engaged Silver Sands Consulting to conduct an external investigation. An investigation report on June 26 said there was enough evidence to form an opinion the man had grabbed the woman and left a bruise to her arm. The report found he had sexually harassed her, and also that he breached Calvary’s code of conduct and behaviour policies. The man, who had been stood down without pay on May 26, was notified on August 5 that he had been found guilty of serious misconduct, and his job was to be summarily terminated. He took his case to the Fair Work Commission and hearings were held in Canberra in December last year and January 2017, where co-workers, the report writer and others were questioned. The man said there was no valid reason for his sacking and it was harsh, unjust and unreasonable. He said he was not afforded procedural fairness or natural justice in responding to the allegation, and that the hospital had not carried out a proper investigation. The latter claims against Calvary related to the investigator’s alleged lack of experience or qualifications to conduct an investigation, an alleged failure to contact witnesses that would have corroborated his version of events, and an alleged refusal to release a copy of the report and any evidence with respect to the decision to sack him. He sought reinstatement to his former position with back pay. But in a Fair Work Commission decision, deputy president John Kovacic dismissed the man’s claim, finding his termination in the circumstances was justified. The deputy president found, on the balance of probabilities, that the worker did grab and proposition the woman, and that this was serious misconduct. There was therefore a valid reason for the sacking, and the hospital’s decision was defensible. Mr Kovacic noted several witnesses had described the woman in some level of distress when talking about what happened. Under a heading labelled “other matters the commission considered relevant”, Mr Kovacic noted the hospital had said the employee launched “a character assassination upon [the woman] rarely seen in unfair dismissal proceedings”. The hospital also said he had failed to appreciate the seriousness of the alleged behaviour. Serge Gorval, solicitor director at Gorval Lynch and the man’s lawyer, said his client was considering his position, which included an appeal of the decision as well as other options. Mr Gorval said his client denied the allegations wholeheartedly.
