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Steve Beale and Chris Dunphy, MIPEC Jemma and Mila Smith (L-R) Amelia, Mackenzie , Abby and Cassie Aboutusgeneric_2 Aboutusgenericimage_3 Aboutusgeneric_1 csg (L-R) Lauren-Jade, Lucy and Marc Atkinson Jo-Anne Burke, DB Scaffolding; Susan McGuire, Mayogroup Jayce Butcher David Gibson and Santa Rivah and AJ Conway-James Vin Hamilton mine Zoe with Santa
Steve Beale and Chris Dunphy, MIPEC Jemma and Mila Smith (L-R) Amelia, Mackenzie , Abby and Cassie Aboutusgeneric_2 Aboutusgenericimage_3 Aboutusgeneric_1 csg (L-R) Lauren-Jade, Lucy and Marc Atkinson Jo-Anne Burke, DB Scaffolding; Susan McGuire, Mayogroup Jayce Butcher David Gibson and Santa Rivah and AJ Conway-James Vin Hamilton

No proof of “grope”
Worker sacked for sexual harassment wins job back through Fair Work Commission
Wednesday 13 December 2017  

Fair Work Australia has ordered Anglo American to reinstate 57-year-old miner Vincent “Jimmy” Wilson to his position at the Moranbah North mine with back pay, after finding his sacking in May this year was harsh, unjust and unreasonable.

Mr Wilson was sacked after the mines first ever female trainee alleged that he had been inappropriate on site, during an exit interview following her resignation.

The 19-year-old woman, known as Person A, alleged Mr Wilson had engaged in "unwelcome and uninvited physical contact" with her, including "slapping or patting" her on the backside while they were in a crane basket together.

Mr Wilson was also alleged to have made "sexually explicit" comments to her in the lunchroom by telling her "you can come and live with me as long as you like gardening and sex" in response to her talking about problems with her boyfriend.

However, Mr Wilson denied groping her or making the sexual comments, claiming he didn't even have a garden and that the trainee "regularly" spoke about her sex life in graphic terms.

Person A had said in an earlier and unrelated Anglo American investigation into her behaviour that she had used the language as she had a “want or need to try and fit in with the crew”.

Nonetheless, an Anglo American investigation concluded that Mr Wilson had breached the companies sexual misconduct guidelines, on the basis that three crew members separately recalled the trainee telling them about the incident at the time in a "highly emotional state".

Anglo also concluded "there was no reason why Person A should not be believed given she had no apparent motivation for making up the allegation and had been reluctant in making the complaint in the first place for fear of reprisal".

However under cross-examination, the FWC found the trainee couldn't give "clear and cogent" evidence that the contact had been deliberate, and she didn’t see Mr Wilson's hand touch her.

“In allegations of conduct of this nature, the onus of proof is on the Respondent to satisfy that the conduct occurred as alleged, on the balance of probabilities,” the Commissioner said in concluding remarks.

“Taking into account all of the circumstances of the matter and for the aforementioned reasons, the evidence of the Applicant [Mr Wilson] is preferred, in relation to the allegations.

“There was no clear and cogent proof before the Commission to conclude, on the balance of probabilities that the allegations were made out, and a range of other issues arose from the evidence of Person A’s traineeship that the Respondent was not alert to.

“A valid reason for dismissal was not made out, and accordingly the termination was harsh, unjust and unreasonable, and it's appropriate to make an Order for reinstatement and continuity of employment and service”.

 

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