In Phillip Parker v Cricks Volkswagen (2018), the Fair Work Commission (FWC) ruled that a car dealership manager who was sacked for allegedly physically threatening a young female worker and on another occasion telling her to “show them your tits” cannot appeal his dismissal.
In the first incident, Mr Parker reportedly told the 21-year-old trainee salesperson “If you ever call me that finance guy or that guy or that business guy I will back hand you, even if you are a girl I don’t care.”
Months later, in the second incident, the worker approached Mr Parker and complained about feeling uncomfortable with the behaviour of some customers who were speaking and behaving in a rude and sexist manner towards her. He allegedly told her: “Just show them your tits, you will be fine”.
Cricks Volkswagen dismissed Mr Parker, after which he applied to the FWC for unfair dismissal remedy.
The FWC found that Mr Parker knew his behaviour was in breach of the company’s policies and procedures and that the incidents were a valid reason for his termination.
However, the FWC also held the process was unfair and awarded Mr Parker $7,459.41 compensation.
He appealed the decision.
In the second hearing, the Full Bench of the FWC supported the first decision and rejected the appeal.
The manager should have known better
The company had clear and understandable policies and procedures, which correctly identified Mr Parker’s behaviour as misconduct.
All workers knew the policies and procedures and that a breach could lead to termination of employment.
Mr Parker, who enjoyed a position of authority, made comments to the trainee that reflected upon her gender, disparaged it and, in the first incident, were threatening.
It was reasonable for the worker to be offended, hurt and humiliated and she was. It impacted her sense of safety and wellbeing.
Lessons for employers
- Develop policies and procedures that are drawn from organisational values, are easy to understand and make the consequences of a breach clear.
- Train workers in the policies and procedures and make sure they understand a breach of the policies and procedures could lead to the termination of their employment.
- When an allegation arises, investigate it fairly (offer people support, put the allegations squarely to people and give them an adequate chance to respond).
- In determining the appropriate disciplinary action, look carefully at the context of what was said (Who had authority? Was it said in a disparaging or threatening way? etc.) and test it against what a reasonable person would feel if they were exposed to the behaviour.
Then, look at the employment history of the worker (age, longevity in the organisation, prior history and conduct, job market) and weigh that information against the severity of the misconduct.
For example, if Mr Parker had only said “I know you are a girl but you need to toughen up”, his remark would be in breach of the policy and it would deserve a warning, but the context would be less traumatic.