A mine worker sacked for sexually harassing two young female colleagues has lost his unfair dismissal claim.
The Fair Work Commission found the dismissal was valid because the man’s behaviour amounted to serious misconduct.
The first incident
The 58 year-old man worked as a service technician at BHP’s Yandi mine site in Western Australia since 2018.
At the end of a shift in January 2021, he grabbed a 21 year-old cleaner in an on-site tavern as she walked to the bar.
He hugged her and then whispered in her ear: “I’m going to fuck you so hard”.
The young cleaner pushed the man away and told her co-workers what had happened as soon as she returned to her table.
Although the incident made her feel “very uncomfortable”, she decided not to make an official complaint at the time.
She told the Commission that she thought she might not be taken seriously as “he had not tried to rape her or anything like that”.
The second incident
Six months later, in June 2021, the man approached a 19 year-old housekeeper working at the site.
The woman told the Commission he was holding a can of beer and that she could smell alcohol on his breath.
He said to her: “You are a housekeeper, you must see some stuff you don’t want to see.”
When she asked what he meant, he replied: “For instance, if you are cleaning my room, you would see white splatters all over the shower.”
The woman described the comment as “gross and inappropriate” because she knew he was talking about semen.
The man then told the woman he had lost his phone and asked her to ring it as a way to obtain her phone number.
As she went to leave, the man grabbed her on the breast squeezing it hard.
She housekeeper told the Commission she was “petrified and froze on the spot” and felt “violated”.
She then pushed past the man and started “bawling her eyes out” as she walked away.
Later that night, the woman received multiple phone calls from the man which she refused to answer.
Mine worker sacked for sexual harassment
The housekeeper spoke to the cleaner who had been harassed six-months earlier, and both women decided to make a formal complaint to management.
The housekeeper flew out of the mine site soon after and then resigned – telling management she felt “too unsafe” to continue working.
BHP immediately suspended the man and removed him from the site.
Management commenced an investigation which subsequently found both incidents had been substantiated.
The mine worker refused offers to respond to the allegations, both in person and in writing, and was subsequently dismissed.
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During his unfair dismissal case, the man denied hugging the cleaner in the tavern or making the lewd remark.
In relation to the second incident, he claimed he patted the housekeeper on her back as a gesture of comfort.
He said the woman voluntarily rang his phone so he could have her number to contact her later.
He denied making the comments about white stains and also denied touching the woman on her breast.
In the end, Commissioner Bruce Williams said he preferred the evidence of both women.
He found neither had a reason to lie and he also noted the tavern incident had been witnessed by a co-worker of the cleaner.
Commissioner Williams concluded the worker’s comments, in addition to the unwanted physical contact, amounted to sexual harassment and serious misconduct.
“Both hugging Complainant 1 without her consent and whispering to her to lewd statement, as he did in January 2021 were each separately valid reasons for [the worker’s] dismissal.
“Both saying the lewd statement to Complainant 2 and grabbing her breast as he did on 19 July 2021 were each separately valid reasons for [the worker’s] dismissal.”
Commissioner Williams also found BHP had provided the worker with procedural fairness and an opportunity to respond to the allegations.
“Taking into account all the matters above I am satisfied that the dismissal of [the worker] was neither harsh, nor unjust nor was it unreasonable,” he said.
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