A recent case heard in the Fair Work Division of the Federal Circuit and Family Court of Australia (“FCFCA”) has raised some interesting questions around whether a new employer can terminate for serious misconduct that occurred during the course of work with a former employer.
In this case, an accountant (“the Applicant”) is challenging his summary dismissal from Bunnings Warehouse (“Bunnings”) after it became aware that the Federal Court found he had sexually harassed his former supervisor whilst working as a chartered accountant for his former employer.
In 2013, a claim was made against the Applicant for sexually harassing his former supervisor (“the Colleague”) whilst working for the Former Employer. The case was heard in the Federal Court and Justice Mordy Bromberg ordered that the Applicant pay $476,000 in damages to the Colleague for physical and verbal harassment. As a result of the harassment, the Colleague was diagnosed with post-traumatic stress disorder and other psychiatric illnesses that would affect her ability to work again.
The Applicant commenced work at Bunnings in May 2021, and was subsequently promoted in October 2021 to a pricing coordinator role within the Victorian head office. In November 2021, the Applicant alleges that Bunnings summarily dismissed him upon finding out about his history of workplace sexual harassment.
The Applicant’s Case
The Applicant has accused Bunnings of unfair dismissal when they terminated his employment after becoming aware of the Federal Court’s findings of sexual harassment against him.
The Applicant contended that he had been dismissed without “any merit or reasonable basis whatsoever” and that Bunnings had failed to investigate or discuss his background with him before summarily dismissing him. He also accused Bunnings of discriminating against him because of his ‘social origin’ and that it did so “forcefully and with outright vengeful intent”.
The Applicant is seeking $167,000 for two years’ loss of wages plus damages. The Applicant justified that the amount was appropriate as he is a “53-year-old man who is now unable to work as a chartered accountant ([having] lost his professional qualification due to the adverse findings) and now obliged to work below his skill level“.
Bunnings is contesting the unfair dismissal application and sought an interlocutory application that argued several parts of the Applicant’s case should be dismissed on the grounds that they have no reasonable prospects of success.
The Legal Issue
The Applicant has alleged that he was not afforded procedural fairness in his dismissal. Namely, that Bunnings failed to investigate or consult with him prior to terminating his employment.
Further, as per s351(1) of the Act an employer cannot take adverse action against an employee because of that person’s social origin. For the purposes of the Act, social origin is interpreted as referring to the Applicant’s supposed social status or “socio-occupational category”. The purpose of including ‘social origin’ within the Act is to protect people that exhibit characteristics that are consistent with lower (or higher class) identity from adverse action. In order to succeed in his claim the Applicant must demonstrate that the decision to terminate his employment was made on the basis of his social origin.
The hearing between Bunnings and the Applicant was transferred from the Federal Court to the Federal Circuit and Family Court. Judge Mercuri will conduct a directions hearing on 29 March 2022.
This case will have interesting implications as to whether existing conduct of an employee that occurred whilst employed for a different employer, can be utilised as a valid reason for termination of employment. Due to the serious nature of the conduct, one can understand the reasons why Bunnings terminated the Applicant’s employment, however, the key question is whether Bunnings had a sound and defensible reason for doing so. Whether this dismissal was unfairly discriminatory and on procedural unfair will be key to the court’s consideration of this matter.
If you require any further advice on unfair dismissal, please do not hesitate to contact Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.