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17 April 2019
Peter Angelakos, who was 52-years old, was employed by Coles as the duty manager at its supermarket in Moranbah, Queensland.
Two junior female employees made complaints about Angelakos's inappropriate behaviour, including claims of sexual harassment. Due to the nature of the alleged conduct, Angelakos was immediately stood down with pay.
An investigation commenced into Angelakos's conduct. An additional six employees came forward and made complaints about his inappropriate behaviour. Three of the complainants were under the age of 18 and several were in their early twenties.
A total of 39 allegations were put to Angelakos. Broadly, they involved the following conduct:
In addition to the eight complainants, several other employees had witnessed Angelakos's conduct.
Angelakos denied all of the allegations.
In total, 33 of the 39 allegations were found to be substantiated or partially substantiated by the internal investigator, including sexual harassment against a female employee under the age of 18. Angelakos's conduct was found to be in breach of the Coles Code of Conduct and Equal Opportunity Policy.
Angelakos was provided with the investigation's outcome on 8 March 2018. A meeting was held with him on 9 March 2018, at which he was asked to show cause as to why his employment should not be terminated. Angelakos provided a short, written response in that meeting and, following a break, his employment was terminated for serious misconduct that same day.
Angelakos commenced unfair dismissal proceedings before the Fair Work Commission. He sought reinstatement to his position or the maximum compensation of 26 weeks.
The commissioner upheld the majority of the internal investigator's findings. Importantly, all of the findings of inappropriate conduct towards female employees were upheld.
The commissioner noted that the #MeToo movement had commenced and gained traction in late 2017 and was likely to have encouraged the initial complainant and other complainants to report Angelakos's conduct.
The commissioner found that:
While there were a few matters that Coles could have improved on (see below), the commissioner was satisfied that the dismissal had not been unfair.
The commissioner found that Coles had followed a proper process before the termination of Angelakos's employment. However, the decision nevertheless contains some useful guidance for employers in managing inappropriate workplace behaviour and unfair dismissal risks.
Large employers should provide employees with more than one avenue to make a complaint or raise concerns about inappropriate workplace conduct. For example, in the retail sector, a store manager should not be the only avenue for an employee to make a complaint.
In the case of termination for misconduct, it is good practice for employers to include the conduct that leads to a termination in any letter of termination. It is generally insufficient to simply say that the employment is being terminated for misconduct.
Where an employee is asked to show cause why their employment should not be terminated, employers should ensure that the employee is provided with sufficient time to provide a response. Best practice is likely to involve holding show cause and termination meetings on different days, rather than dealing with both matters in one meeting.
For further information on this topic please contact Julian Riekert or Bridget Shelton at Lander & Rogers by telephone (+61 3 9269 9000) or email (firstname.lastname@example.org or email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
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