In a recent decision, the Fair Work Commission underscored the importance of distinguishing between different forms of workplace harassment, particularly sexual harassment, which is a specific form of misconduct with clear, distinguishing characteristics. Unlike sexual harassment, harassment in a general sense is not explicitly defined under Australian industrial relations or employment laws but often aligns with the definition of workplace bullying under the Fair Work Act 2009 (Cth).
In the case of Ramlan Abdul Samad v Phosphate Resources Ltd, the Commission made a key distinction in defining the misconduct. As Deputy President O’Keeffe highlighted, not all types of harassment meet the criteria for sexual harassment. While Samad’s behaviour was offensive, it did not contain a significant sexual element, leading the Commission to classify it as bullying rather than serious misconduct. These findings demonstrated that, although Samad's actions were inappropriate and damaging to the workplace culture, they did not meet the threshold for immediate dismissal without prior warnings or performance management.
This decision emphasizes the need for employers to understand the nuanced distinctions between types of misconduct and ensure that dismissal decisions are based on clear, legally supported definitions.
Background and Key Allegations
The applicant, Ramlan Abdul Samad, had been employed by Phosphate Resources Ltd since 2004 and, at the time of his dismissal, was working as a truck driver. The events leading to his termination began in April 2024, when Samad initiated inappropriate behaviour towards a colleague, Mr. Ismail Rahman. Samad repeatedly made derogatory comments, implying that Rahman “knew how to suck the boss,” while imitating a person performing fellatio. Rahman initially did not respond, though he later testified that this behaviour occurred multiple times.
On 24 May 2024, Samad made a similar comment, which led Rahman to ask him to stop, warning that he would file a harassment complaint if the behaviour continued. Despite this, Samad persisted, making repeated comments to other employees, implying that they should avoid joking with Rahman, as he would report it to management. These actions culminated in an altercation on 1 June 2024, where Rahman confronted Samad, and the applicant displayed aggression.
Subsequently, Rahman reported the behaviour to management, triggering an internal investigation. The outcome of the investigation was a determination that Samad had breached several workplace policies, including the company's Code of Conduct, leading to his dismissal in June 2024.
Procedural Shortcomings: A Key Factor
At the heart of the Commission’s ruling was the procedural handling of the dismissal. While Samad admitted to making some of the inappropriate comments, he claimed not to have been aware of the specific policies he was alleged to have breached. This lack of awareness became a pivotal issue in the decision.
During the hearing, Samad stated, “I don’t know anything about the new policies the company say I breached. Then they sacked me. I don’t know why I should be dismissed.” His submission suggested that employees should be made aware of policies if the employer intends to hold them to the standards set by those policies. He further argued that the policies had not been introduced to the workforce effectively, as they had not been raised in the workplace Joint Consultative Committee, which could have been an appropriate forum for such discussions.
Although Phosphate Resources Ltd had delivered training on the Code of Conduct, Deputy President O’Keeffe noted that the toolbox talk during which the policies were discussed appeared to be a "tick and flick" exercise, failing to effectively communicate key behavioural expectations. The company’s failure to sufficiently introduce and reinforce its other workplace policies—particularly the newer Psychosocial Safety Policy—weakened its position.
The decision underscores the importance of employers not only having clear policies but also ensuring that they are communicated effectively, especially in remote or linguistically diverse workplaces.
The Commission’s Consideration of Misconduct
The FWC made it clear that while Samad’s behaviour was inappropriate and, in some instances, aggressive, it fell short of meeting the threshold for serious misconduct as defined under Regulation 1.07 of the Fair Work Regulations 2009. Specifically, while harassment was alleged, the Commission found that the conduct, though offensive, did not constitute sexual harassment under the Sex Discrimination Act 1984. Rather, it was characterised as bullying, which—although serious—did not create an imminent risk to health and safety.
In determining the industrial characterisation of the applicant’s behaviour, the Commission closely examined whether it could be classified as serious misconduct. Regulation 1.07 of the Fair Work Regulations defines serious misconduct to include theft, fraud, assault, or sexual harassment. The respondent described the applicant’s behaviour as sexual harassment and sought to place it under this regulation. However, the definition clearly delineates sexual harassment as a specific form of misconduct. As Deputy President O’Keeffe highlighted, not all types of harassment meet the criteria of sexual harassment. In this case, while offensive, Samad’s behaviour was not found to contain a significant sexual element.
Following these findings, Deputy President O’Keeffe elaborated further: “I accept that there are many shades of grey rather than a strict black / white definition when it comes to what is and what is not sexual harassment. I also accept that the actions of the Applicant involved accusations of Mr Rahman performing a sexual act and suggestive hand gestures. However, I do not accept that there was any genuine sexual undertone to what the Applicant was doing. I think what he was instead doing was using a common – but totally unacceptable – form of insult for people who are considered as being too close to their boss.”
The Commission also drew on Vice President Hatcher’s list of behaviours that could constitute bullying in Mac v Bank of Queensland. In that decision, Vice President Hatcher proposed behaviours such as intimidation, coercion, threats, humiliation, victimisation, verbal abuse, belittling, and victim-blaming as examples of bullying. Deputy President O’Keeffe found that Samad’s conduct clearly fit within these types of behaviours, noting that it involved intimidation, belittling, and mocking, thus best characterising his actions as bullying.
These findings collectively demonstrated that while Samad’s behaviour was inappropriate and unacceptable, it did not rise to the level of serious misconduct as defined by the regulations. Instead, the Commission characterised the behaviour as bullying, which, while damaging to the workplace culture, did not meet the standard required to justify immediate dismissal without prior warnings or performance management interventions.
Harsh and Unjust Termination: Length of Service and Limited Training
Despite the valid reasons for termination, the Commission found that the dismissal was harsh due to Samad’s 20-year tenure, his age (62), and the limited employment opportunities on Christmas Island, where Phosphate Resources Ltd operates. Additionally, the Commission gave weight to the inadequate roll-out of key workplace policies, noting that proper and culturally appropriate training might have mitigated the applicant's behaviour.
Employers must consider the broader context surrounding an employee's dismissal, including their service history, the adequacy of training provided, and the employee’s post-dismissal prospects, particularly in remote or specialised industries.
Key Lessons for Employers
This decision reinforces several critical lessons for employers:
- Clear and Comprehensive Policy Communication
Policies must not only exist but be effectively communicated and understood by all employees. Interactive training, particularly in remote and culturally diverse environments, is essential to ensure behavioural expectations are clear. - Assessing Serious Misconduct
Employers must carefully assess whether an employee’s actions genuinely meet the threshold for serious misconduct. Misconduct that does not present an imminent risk may warrant a different disciplinary approach, such as warnings or performance management, rather than immediate dismissal. - Consideration of Length of Service and Employee Impact
The employee’s length of service, age, and employment prospects are critical factors in assessing whether a dismissal might be deemed harsh. Even where misconduct occurs, these factors can weigh in favour of less severe disciplinary actions. - Procedural Fairness
Procedural fairness is paramount in all dismissal cases. Providing the employee with a clear opportunity to respond, ensuring they understand the policies at issue, and considering their response in good faith can help avoid a finding of unfair dismissal.
Conclusion
The Fair Work Commission’s decision in Ramlan Abdul Samad v Phosphate Resources Ltd highlights the crucial distinction between different forms of workplace misconduct, particularly the specific definition of sexual harassment. As the case demonstrated, not all offensive or inappropriate behaviour constitutes sexual harassment. Instead, behaviours such as bullying, while damaging, may not always justify immediate dismissal without following proper procedures, including prior warnings or performance management.
This ruling serves as an important reminder for employers to ensure that their policies are clearly communicated, understood, and properly enforced, especially in remote or culturally diverse workplaces. Employers must carefully assess the nature of misconduct, ensuring that disciplinary actions are aligned with the law and supported by clear definitions. By taking these steps, organizations can avoid costly and unjust dismissal outcomes while fostering a fair and compliant workplace culture.
s.394—Unfair dismissal
Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 3039 (1 November 2024)
DEPUTY PRESIDENT O’KEEFFE PERTH, 16 OCTOBER 2024
Application for relief from unfair dismissal – dismissal harsh and unjust
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