#MeToo inspires employees to act: Dismissal of a Coles manager upheld by the Fair Work Commission

Background

52-year-old Peter Angelakos was employed by Coles as the Duty Manager at its supermarket in Moranbah, Queensland.

Two junior female employees made complaints about Mr Angelakos's inappropriate behaviour, including claims of sexual harassment. Due to the nature of the alleged conduct, Mr Angelakos was immediately stood down with pay.

An investigation commenced into Mr Angelakos's conduct. An additional six employees came forward and made complaints about inappropriate behaviour by Mr Angelakos. Three of the complainants were under the age of 18, and a number were in their early twenties.

The allegations

A total of 39 allegations were put to Mr 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, such as 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, such as "be careful the next time you think to complain about me", and insinuating that he could have the employee fired.

In addition to the eight complainants, there were a number of other employees who witnessed Mr Angelakos's conduct.

Mr 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. Mr Angelakos's conduct was found to be in breach of the Coles Code of Conduct and Equal Opportunity Policy.

Mr Angelakos was provided with the outcome of the investigation on 8 March 2018. A meeting was held with him on 9 March 2018, at which he was asked to show cause why his employment should not be terminated. Mr Angelakos provided a short, written response in that meeting and, following a break, his employment was terminated for serious misconduct that day.

Mr Angelakos commenced unfair dismissal proceedings in the Fair Work Commission. He sought reinstatement to his position or the maximum compensation of 26 weeks.

Coles decision upheld

The Commissioner upheld the majority of the internal investigator's findings. Importantly, all of the findings about inappropriate conduct towards female employees were upheld.

The Commissioner noted that the #MeToo movement commenced and gained traction in late 2017, and was likely to have encouraged the initial complainant and other complainants to report Mr Angelakos's conduct.

The Commissioner found that:

• the internal investigator did 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, provided a valid reason for Coles to terminate Mr Angelakos's employment, and that it was not necessary for her to consider each substantiated allegation; and
• Coles followed a fair process in carrying out the termination of Mr 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 could be improved upon by Coles (see "Key takeaways" below), the Commissioner was satisfied that the dismissal was not unfair.

Key takeaways

The Commissioner found that Coles followed a proper process prior to the termination of Mr Angelakos's employment. However, the decision nevertheless contains some useful guidance for employers in managing inappropriate workplace behaviour and unfair dismissal risks.

• For large employers, there should be more than one avenue for employees 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 an employer to include the conduct that has led to the termination in any letter of termination. It is generally not sufficient to simply say that the employment is being terminated for misconduct.
• Where an employee is asked to show cause why his or her employment should not be terminated, employers should ensure 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 the one meeting.