Employee with 20 years’ service was not unfairly dismissed for groping colleague

Australia’s sexual harassment framework has been subject to significant reform in the last few years, including by introducing the new ‘positive duty’ to eliminate sex based discrimination and sexual harassment, and by amending the Fair Work Act to expressly call out sexual harassment as a valid reason for dismissal.

The recent decision of John Tamaliunas v Alcoa of Australia Limited [2024] FWC 779 demonstrates the changing landscape of sexual harassment laws, highlighting that even higher standards from employers are now expected and emphasising the societal recognition that sexual harassment simply has “no place in the workplace”.

The case of John Tamaliunas v Alcoa of Australia Limited [2024] FWC 779

Mr John Tamaliunas was employed by Alcoa since 2004 and was summarily dismissed without notice for inappropriately touching a female employee (the Employee) in October 2023.

During his tenure, Mr Tamaliunas had been the subject of coaching and disciplinary action, including with respect to allegations that he had “touched, grabbed and shoved” other employees.

The events that led to Mr Tamaliunas termination are summarised as follows:

• Mr Tamaliunas and a number of other Alcoa employees were gathered in a small office (approximately 4m x 5m) at Alcoa’s Pinjarra Alumina Refinery;
• The Employee was standing between an L-shaped desk and a corner desk, leaving a narrow gap;
• In passing the Employee, Mr Tamaliunas turned his back to the Employee (who also had her back to Mr Tamaliunas) and in doing so, Mr Tamaliunas touched the Employee in an intimate area which the Employee described as ‘underneath her buttocks, close to her anus’;
• The Employee’s partner, also an employee of Alcoa, entered the same office shortly after this event, finding the Employee noticeably distressed. The Employee subsequently broke down crying and disclosed to her partner what she had just experienced;
• The Employee’s partner confronted Mr Tamaliunas who subsequently informed a member of HR that the Employee’s was annoyed because he (Mr Tamaliunas) had “tapped” the Employee on her upper bottom in the hip area. HR suggested that Mr Tamaliunas apologise to the Employee, which he subsequently did;
• HR later approached the Employee after noticing she looked visibly distressed. The Employee relayed the events and the apology from Mr Tamaliunas, stating that she did not consider he was sincere and had tried to downplay what had occurred. The Employee said she did not wish to make a formal complaint about the incident as she was concerned that her work colleagues would treat her differently if she did so;
• The Employee subsequently went on personal leave following the incident.

Despite the Employee maintaining that she did not wish to make a formal complaint, Alcoa decided to conduct an internal investigation into the matter which found that Mr Tamaliunas had made unwelcome and socially inappropriate physical contact with the Employee, causing the Employee to feel uncomfortable in the workplace.

On that basis, Mr Tamaliunas was summarily dismissed and shortly after, made an unfair dismissal claim in the Fair Work Commission.

The Fair Work Commission’s Decision

Deputy President Binet accepted the Employee’s evidence that Mr Tamaliunas had “groped her” and that the contact occurred in a sexualised location.

The Deputy President rejected Mr Tamaliunas’ evidence that any physical contact was accidental and rejected the “well worn path” of blaming the victim for the contact due to her decision to stand in a narrow walkway.

Deputy President Binet considered that Mr Tamaliunas had completed compulsory training, including Equal Opportunity Training several months prior to the incident, which included training on expected workplace behaviour and harassment in the workplace and highlighted that harassment is not determined by the intent of the person who engages in such conduct – but the impact it has on the recipient.

Ultimately, Deputy President Binet did not accept that Mr Tamaliunas’ conduct was intended to be entirely without a sexual nature – and that, regardless of the intention, the conduct was unwelcome.

In her decision, Deputy President Binet articulated that:

“The bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the broader community. An even higher bar has been set for interactions occurring in work related environments. The media coverage and social discourse in relation to these issues has been extensive, placing those in Australian workplaces on notice that their behaviour will attract greater scrutiny and face higher standards than in the past”.

Deputy President Binet concluded that the conduct engaged in by Mr Tamaliunas was sufficient to constitute serious misconduct and that the dismissal was not harsh, unjust or unreasonable in the circumstances.

What do Employers Need to be Aware of in Light of This Decision?

This decision demonstrates the significant legal and societal shift with respect to sexual harassment and highlights how recent amendments to the laws have ‘raised the bar’ for employers when it comes to how they must deal with and notably prevent sexual harassment from occurring in the workplace.

Employers are reminded that, as a result of the changes introduced by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Respect@Work), it is now abundantly clear that the onus is on employers to proactively prevent sexual harassment and hostile workplace environments, and instead create a safe workplace culture.

Furthermore, the Fair Work Act has now been amended to specifically identify sexual harassment as a valid reason for dismissal – meaning, as articulated by Deputy President Binet, that sexual harassment has ‘no place in the workplace’ and should be treated in the same manner as violence or theft.

Lastly, employers must be reminded that they can be held vicariously liable for unlawful conduct such as sexual harassment by their employees in connection with their employment or duties.

HR Legal offers comprehensive training and support in respect to the Respect@Work laws and the duties and responsibilities on employers, which can be viewed here. If you are unsure about whether your workplace is currently compliant with these new laws, HR Legal can assist.