In a recent court ruling the Industrial Relations Commission of NSW decided that a NSW public servant who was dismissed for inappropriate touching should be given his job back. The policy officer for the NSW Attorney General and Justice Department lost his job in 2012 after touching the breasts of five women during a Christmas party. He was also found to be in breach of confidentiality and recruitment policies after he revealed to a colleague that she had been unsuccessful in a recent job application.
Reasons for the decision
The ruling to reinstate the employee was based on a couple of different factors. In the investigation, the NSW IRC found that the employee who was dismissed was treated significantly more harshly than a senior manager who touched the breasts of two women at the same function.
During the time leading up to his dismissal, the policy officer had also presented a number of mitigating factors and arguments which it was found were not given due consideration. These included the level of his remorse, his belief that he had obtained consent and the fact that the incident was a one-off. On the day of the function, the policy officer had consumed a large amount of alcohol before attending the event and he stated that this was largely due to personal issues he was going through at the time.
The senior manager who had behaved in a similar manner at the same function was only demoted even though complaints suggested that the impact on the victims was more significant from the inappropriate touching by the senior manager than from the employee. The senior manager also denied all the allegations while the policy officer admitted to them and expressed remorse throughout the process.
After comparing the responses to the two men, Commissioner Anne Tabbaa ruled that dismissing the policy officer, when compared against the demotion of the senior manager, was overly harsh.
Reinstatement not always an option
Although reinstatement is not always considered appropriate in these situations, in this particular case it was an option due to the fact that the policy officer had maintained good relationships with other employees during the period between the incident and his dismissal. He had also carried out all his required duties during this time and had excellent character references.
Another reason for the policy officer’s reinstatement was that he had demonstrated remorse and shown willingness to be subject to disciplinary measures which included demotion to a lower pay grade and attending relevant sexual harassment training. It was also made clear that he had been embarrassed and humiliated by his actions and the consequences would remain with him for a long time. In addition to the other disciplinary measures, he agreed to have a warning letter placed on his file and to provide a written apology to each of the complainants.
The policy officer had worked with the department for 20 years and during that time took on various HR duties although he was never directly responsible for managing employees. During this time there had been no previous instances of him engaging in inappropriate behaviour.
Standardised procedures are vital
This case demonstrates the importance of creating standardised disciplinary procedures which apply equally to employees at all levels of an organisation. Even though the policy officer in this matter behaved in a manner that was a breach of the department’s code of conduct and ethics and its dignity and respect policy, the fact that he was dealt with so differently to his more senior colleague was considered unfair by the NSW IRC.