Team leader rightly sacked for 'blatant benevolent s-xism'

An employee who was sacked for inappropriate behaviour and comments towards young female workers has had his unfair dismissal claim rejected in the Fair Work Commission.

The Toyota Motor Corporation Australia group leader was dismissed in June 2016 for conduct also including favourable treatment and condoning prohibited conduct of some members of his team, which was mostly comprised of young female temporary fixed-term (TFT) employees.

He argued before the FWC that his dismissal was disproportionate to the gravity of his misconduct and harsh, given his 23-year unblemished history at Toyota.

Commissioner Katrina Harper-Greenwell accepted evidence from Toyota's witnesses that the group leader had created a "weird and dirty atmosphere" in the workplace, frequently making sexual remarks and commenting on the appearance of female team members.

"By allowing behaviours of such a nature to take place it is evident that the working environment, although not hostile, was uncomfortable for some and at the very least was an unhealthy work environment," she said.

"The comments made by [the group leader] to the young female TFT employees in my view were in fact a rather blatant form of benevolent sexism which has no place in the workplace."

Commissioner Harper-Greenwell also accepted the group leader would allow young female employees to sit on his lap, or on the arms of his office chair, while he was seated in it.

His claim that his chair was "king-size" and could comfortably accommodate young female employees either side of him was unfeasible, she said.

"It is simply inconceivable in a workplace in the current era that behaviour of this nature by a group leader, who has the responsibility of leading a group of influential young employees regardless of gender, would be condoned."

The Commissioner said the group leader's evidence was "self-serving and designed to deflect from his own unacceptable behaviour".

She found Toyota had a valid reason to sack him and did not accept his additional argument that the dismissal was harsh because of the impact on his personal circumstances.

The group leader submitted that had he not been dismissed he would have been entitled to receive a substantial redundancy package, and that the dismissal had a very serious financial consequence.

He argued that as a 50-year-old man he was not likely to find comparable work in the future due to the demise of the car industry, further rendering his dismissal unfair.

"I am not persuaded that the mitigating circumstances outweigh the seriousness of the conduct I have found to have been substantiated," the Commissioner said.

"[The group leader] was responsible for a group of vulnerable young female employees whose future employment was reliant on his approval.

"He was responsible for developing and encouraging an environment in which inappropriate behaviour was expected and encouraged and even at the hearing demonstrated a complete lack of remorse or recognition of the seriousness of his conduct.

"I do not consider that his dismissal was harsh in those circumstances."

Culture issues come to the fore

Hall and Wilcox partner Fay Calderone says there are many lessons for employers from this case, and one is that employees accused of harassment, particularly those in more senior roles, can't rely on an absence of complaints about their behaviour to suggest it wasn't unwelcome or inappropriate.

The group leader's defence "wasn't a plausible argument", she says, "particularly where [his behaviour] was directed towards workers who were temporary fixed-term employees and where their future employability relied on his approval".

"How can you say they didn't object in all those circumstances? There was disproportionality between the role and authority that he had, and their own future."

The case also serves as a reminder and warning on the dangers of 'subcultures' developing when employers operate across different sites and with different leadership.

"It seems that they were quite isolated and left to their own devices," meaning Toyota was unaware of issues. "This subculture, notwithstanding the values that Toyota had at the leadership level and HR level, had developed that was completely contrary to that."

Toyota's investigation of the behaviour was prompted by an anonymous call to its 'TMCA STOPline' about a different issue, Calderone notes. "That then trickled into [this] case. It goes to show that when these subcultures do develop, it only takes one complaint and one incident, and the whole thing can unravel."

HR Daily Webinar - Cultural Misfit Terminations

Register for the upcoming HR Daily Premium webinar on cultural misfit terminations, which will delve further into the risks of not addressing poor culture, a legally sound process for dismissing cultural 'misfits', and more.

Cultural misfits: every workplace has one. Perhaps it took some time for that stellar interviewee's true colours to shine through; or maybe a star performer now thinks they're above being a team player.

It's crucial to act sooner rather than later on any behaviour that isn't meeting workplace standards. To understand how, join us at this HR Daily Premium webinar, where Hall & Wilcox partner Fay Calderone will explain:

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About the presenter

Fay has extensive experience advising clients on legal issues affecting the workplace including advice to HR, C-suite leaders and boards on compliance with workplace laws, change management, business protection strategies and underlying cultural issues manifesting in workplace complaints.

She is a recognised expert and go-to person on employment issues, regularly speaking at events on people and workplace issues. Fay was a finalist for the NSW Women Lawyers Achievement Awards – Private Practice Lawyer of the Year 2017; the Australian Lawyers Weekly Awards – Partner of the Year in Workplace Relations 2017; and was recognised for Labour & Employment Law – Sydney in Best Lawyers in Australia 2019 edition.

Fay has previously presented HR Daily webinars on minimising workplace psych risks, employment contracts, and personal liability risks.

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