CEPU and Hall Payne win unfair dismissal claims for TasWater workers

TasWater terminated two employees after they substantiated that the staff members made offensive and inappropriate sexual remarks about two female colleagues using an internal company messaging system. The TasWater workers, who were also CEPU members, alleged that the messages were interpreted incorrectly by TasWater and were taken out of context. CEPU and Hall Payne Lawyers teamed up to prove the allegations unfounded, lodging unfair dismissal claims in the Fair Work Commission.

Overview

The two staff members were considered exemplary workers by TasWater and had no history of warnings or any unsatisfactory performance.

After uncovering the comments made in the internal chat system, TasWater stood the employees down. After reviewing the transcript, TasWater substantiated six identical allegations against the two staff members. They also alleged the employees colluded in their responses, showed no remorse and were being dishonest in re-characterising the conversations.

Indi Gunadasa, from Hall Payne’s Hobart office, assisted the CEPU in drafting submissions and material for the unfair dismissal hearing. Some of the core submissions put to the Commission were:

• when understanding the proper factual matrix behind the allegations, on the balance of probabilities the Commission should be satisfied that they were not of a sexual nature;
• a number of messages on the internal system were in fact hours and/or even days apart in the conversation history and were not part of a continuous conversation;
• even if the allegations were proven, the conduct did not constitute conduct which warranted both of the workers’ termination;
• the employer failed to acknowledge that the workers had recognised their actions and were remorseful; and
• the honest responses the workers put forth in their replies to the employer should not be considered an aggravating factor forming a basis for termination.

The Commission’s decision

The Fair Work Commission agreed with the CEPU and Hall Payne’s submissions and only found one allegation out of six proven.

In making the finding that five allegations were unsubstantiated, Commissioner Tanya Cirkovic stated that she was "unable to conclude, on the balance of probabilities", that the operators were making sexually inappropriate comments about their colleagues during the exchange.

The one allegation substantiated related to a " joke" about one of the workers needing to be castrated to control his sexual urges if he watched Game of Thrones with their female colleague, stating that the worker would have to join the ‘unsullied’, a fictional character in the TV show.

The Commissioner found, based on this comment being substantiated, the employees had breached TasWater's workplace behaviour's policy, as they failed to "act professionally" or treat their colleague with "dignity, courtesy and respect". The Commissioner, however, agreed with the submission that it was "not sufficiently serious, either on its own or collectively, to constitute a valid reason for termination".

Commissioner Cirkovic overall concluded that the dismissals were therefore disproportionate to the operators' conduct and stated:

Consequently, on the material before me I am not satisfied that the conduct upon which the dismissal was based was significant to the extent that it could constitute a sound, defensible and well-founded reason for dismissal.

The Applicants’ dismissals were disproportionate to the conduct that they engaged in.

Result for the workers

The Commissioner requested parties to return to discuss remedy with one employee seeking reinstatement and the other seeking compensation in lieu of reinstatement.

Media on this case

• Fair Work Commission decision in Joshua Nash and Nathan Jago v Tasmanian Water & Sewerage Corporation Pty Limited here.
• Financial Review article “Sacking over ‘Game of Thrones’ sexual innuendo unfair”– 28 June 2020
• Workplace Info article “Messages were not sexual, say sacked workers” – 6 July 2020

Get help from an employment lawyer 

If you have an employment law or industrial relations matter and you’re looking for advice and assistance, Hall Payne’s expert advice, across the country, can help. You can either get in touch directly with today’s blog writer, Indi Gunadasa (Hobart office) or contact us at our head office for a referral to an employment lawyer at any one of our other offices.

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