The NSW Industrial Relations Commission has reinstated a public servant who was fired after groping five women at his work Christmas party.
The commission found Andrew McCaskill, a project officer with the Department of Justice, was treated more harshly than a senior manager who was only demoted.
McCaskill admitted to touching the breasts of five female co-workers at the Christmas party held at a hotel near his work.
He also disclosed confidential information to one of his colleagues, telling her she had not been successful in her application for a position.
McCaskill apologised to the women and said “he had not intended to offend either of the women and that what he did, as a gay male, was in good humour.”
He said his behavior was uncharacteristic and he was “appalled and ashamed”, placing the blame on missing lunch and drinking too much alcohol.
McCaskill argued the decision to fire him was made without consideration of mitigating factors and past good conduct.
He also raised a lesser penalty applied to another manager at the party who also behaved inappropriately.
Commissioner Tabbaa found McCaskill’s unsolicited conduct was “deplorable… and had the potential to undermine the integrity and reputation of the department”.
But she found the penalty of dismissal was harsh when assessed against the penalty meted out to the other senior manager.
Commissioner Tabbaa dismissed an argument that McCaskill’s conduct should be distinguished from that of the senior manager because it involved more women.
“Quantity is not the issue – it is one woman too many”, she said.
“In this day and age it goes without saying that one does not invade the space of another person or touch another person without permission. In any event, even if permission was given, it should not occur in the workplace or any function associated with the workplace.”
Commissioner Tabbaa found reinstatement of McCaskill was not impracticable because he had continued in his role after the incident and maintained a “cordial” relationship with three of the five women.
She ordered McCaskill to be reinstated to his previous position on the same terms and conditions on which he was previously employed with full continuity of service with a number of conditions.
Commissioner Tabbaa ordered a reduction in McCaskill’s rate of pay to the base increment of a clerk 7/8, placement of a final warning letter on his personnel file, a written apology to the five women and participation in equal opportunity and sexual harassment training.
“I have no doubt that the applicant has been humiliated and embarrassed by his actions at that function and will live with the consequences for a long time to come,” Commissioner Tabbaa said.
Employment lawyer Peter Vitale told SmartCompany the critical thing that undid the employer in this case was the inconsistency of treating two different employees engaging in the same conduct.
“There’s a hard lesson here because one can argue the employer acted completely appropriately in terms of terminating the [McCaskill’s] employment.”
“It’s a case which has small employers trying to comply with the law pulling their hair out,” he says.
Vitale says businesses need to demonstrate they are serious about implementation of policies such as equal opportunity policies and sexual harassment policies.
“One of the ways you do that is by applying them equally to different employees,” he says.