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:
- standing inappropriately close to junior female staff members and following them around the store;
- touching female employees inappropriately (eg, on the lower back, arm and shoulder);
- making comments to female staff members such as "you have a very beautiful face", "you stand out from everybody" and "you are very pretty";
- repeatedly asking two junior female employees to become friends with him on Facebook;
- acting in an aggressive and bullying manner towards employees under his supervision; and
- making threatening comments towards employees who raised concerns about his conduct (eg, "be careful the next time you think to complain about me") and insinuating that he could have them fired.
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:
- the internal investigator had done a good job and acted professionally in conducting the investigation;
- the sexual harassment of an underage employee, together with the victimisation of another female employee, had provided a valid reason for Coles to terminate Angelakos's employment, and it had not been necessary for the investigator to consider each substantiated allegation; and
- Coles had followed a fair process in carrying out the termination of Angelakos's employment, including notifying him of the reason for the termination and providing him with an opportunity to respond.
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.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
