Employee who groped a bartender’s bum while on his employer’s dime loses unfair dismissal case

An employee who was sacked for groping a bartender while staying at a hotel paid for by his employer has lost his unfair dismissal case before the Fair Work Commission.

Commissioner Danny Cloghan dismissed a claim by an employee brought against his employer, who were both not named in court documents.

The employee had worked at the company for seven-and-a-half years when he was put up in a hotel the company regularly uses to accommodate employees as part of their employment, in February 2014.

On the evening of February 11, the employee asked one hotel employee what she was doing after work and gestured to his lap. He also made comments of a sexual nature to another hotel worker, regarding her facial piercing.

One of the hotel workers gave evidence to the commission the employee’s behaviour then escalated quickly and he “groped” her bottom.

“I felt the person squeezing my bum with their hand,” said the hotel worker, who was also unnamed in court documents.

“It felt like the person was using two hands to grope my bum because the contact was made across both bum cheeks and I believed I felt more than five fingers touching me. I did not see how many hands the person used to grope my bum.”

The employee was dismissed from his employment on April 17 for his actions.

The employer told the employee “your actions as an employee have brought [the Employer] into disrepute and put both the hotel and [the Employer] to significant cost and inconvenience.”

The employee said he apologised to the bartender on several occasions and argued his actions had occurred outside of the workplace.

But Commissioner Cloghan found it was reasonable to dismiss the employee, given the existing relationship between the employer and the hotel.

Employment lawyer and M+K Lawyers partner Andrew Douglas told SmartCompany the case was representative of a larger change happening in employment law, which considered an expanded definition of the meaning of a ‘workplace’.

“In old case law, if someone did something bad outside of work, an employer could not do anything about it,” says Douglas.

But Douglas says several prominent cases have now shown if the employees’ actions impact the employer’s reputation, then they are able to discipline them accordingly.

“There is a brand and reputational relationship between a business and the person,” he says.

“If you do something that damages the brand and reputation that has some natural connection to the business, you can be reprimanded.”

Douglas believes this shift can be beneficial for employers if they make it clear what their brand is and build those values into policy and business collateral so all employees understand it. He says if this is made clear, it is reasonable to discipline an employee to protect your brand.

“For good businesses, employees are their best advocates. But now for businesses where employees are bad advocates, they have a way of dealing with them,” he says.