I told a coworker that she was good looking and that she had lost weight. I was dismissed a week later. Is it fair? Compliments and Dismissals is becoming an increasing controversal area with the zero tolerence of sexual harassment in the workplace.
How do you know when a compliment is okay?
Understanding what is a genuine compliment or sexual harassment can be difficult. It is usually not up to the person saying the comment to decide. It depends on the context of the compliment and how the individual receives it. Outside of whether a singular compliment constitutes sexual harassment, is it enough to be dismissed over?
The answer is: it depends.
Sexual harassment occurs when a sexual comment, gesture, or activity is done to an unwilling participant. And as a result, they feel humiliated, offended, or upset. Often leading to detriment to the affected party. For example, resulting in emotional turmoil, or even forcing them to resign.
If an employee were to compliment a coworker one time, then this generally would not be considered sexual harassment. It depends on whether a reasonable person would be offended or not. To compliment a coworker’s outfit, work ethic, or achievements would be a typical compliment. It would be hard to argue that a reasonable person would be offended and therefore safe to say.
Where things may be considered sexual harassment is if the ‘compliment’ had a sexual or explicit element. If there is any reference or innuendo to sexual intercourse, genitals, and similar topic.
Examples:
Compliment: Well done on your promotion.
Sexual harassment: Well done on your promotion, who did you have to blow for that one?
Compliment: I like your hairstyle today.
Sexual harassment: You look like you just had sex, who did your bed hair? I like it
Compliment: You are looking nice today.
Sexual harassment: I would do you if you looked like this more often.
While the above examples provide pretty stark comparisons, it may be harder to detect in the workplace. Where certain social roles, dynamics, and relationships may skew how a comment is taken.
Context can change the narrative
Furthermore, the quantity and context of the compliments can change the narrative. If an employee is receiving compliments every day, this may grow to be unwelcomed behaviour. Furthermore, it depends on whether the compliment was done casually in a group conversation, or the employee was pulled into a private office with the commenter standing in front of the door. A compliment could be harmless in the former scenario, but uncomfortable in the latter.
The repercussions from making a coworker uncomfortable with a compliment can vary. For one off comments or misunderstandings usually all it takes is a conversation, perhaps an apology, and that the behaviour does not continue. It would be unlikely that an employee is dismissed due to this sole event.
If the behaviour and compliments does continue, then it is more likely for an employee to complain to management and a formal investigation is undergone. In that case, consistently complimenting a coworker to employee to the point they are uncomfortable is more likely to result in sexual harassment allegations being substantiated. Where a formal warning, additional training, movement from that position, and dismissal are all possible outcomes.
I was dismissed after one comment, what are my rights?
In the case that an employee is dismissed due to complimenting an employee only once, there may be multiple factors to consider. If the compliment was vulgar, inappropriate, or similar to the above ‘sexual harassment’ examples then one comment may be enough for dismissal. However, it would have to be a particularly extreme or aggressive comment.
The bar to terminate an employee when they have had no prior warnings of a similar nature is quite high and hard to meet. Typically, is nothing short of theft, physical violence, or other examples of gross misconduct. However, the Fair Work Commission has made it very clear that sexual harassment will not be tolerated in the workplace.
In the majority of cases, a discussion or warning would be sufficient. The warning must be explained to the employee that if they continue with the same behaviour then the longevity of their employment will be considered. There is no 3-warning rule. In this case a singular warning is enough. In other cases, depending on if it is performance or conduct related, multiple warnings may be more appropriate.
Unfairly dismissed
If an employee is dismissed for making a singular compliment with no prior warnings, then it is likely that they have been unfairly dismissed and may have access for Unfair Dismissal laws with the Fair Work Commission. The form is also called an F2 Form. Outside of requiring an unfair dismissal, the employee must satisfy the minimum employment period (either 6 or 12 months depending on company size) and must earn less than $175,000.
The claim’s primary argument is that the dismissal was done in a harsh, unjust or unreasonable manner. Or a combination of the three. In most cases there are other circumstances that may make the dismissal more or less harsh than originally assumed.
It is important to note that the Fair Work Commission has a strict 21-day policy. From the day of termination, or last day working for the company, the employee has 21 days to lodge a claim. If the employee is late, then their claim will only be accepted if it was due to extraordinary reasons. Nothing short of being on a remote island without technology.
One comment does not constitute dismissal
In 2024, an employee working in construction in Alberta, Canada, made a singular sexist comment which led to his dismissal. The employee was a crane operator. In August 2023 the employee was in the communal lunchroom when he made the comment along the lines of “women are hoes”. Which multiple other employees had heard and verified. Included in the witnesses were two female crane operators.
Due to this comment the employee was dismissed later the same day for breaching the employer’s Workplace Harassment Policy. It was noted that the employee did not seem remorseful or apologetic for his comment. The Workplace Policy was well known within the company as it was brought up multiple times in toolbox talks, trainings, and was posted in the lunchroom. The claim was brought forward to a Canadian arbitrator.
Everyone deserves the right to defend themselves
The employer defended that they took a harsh stance to the comment as women have faced ongoing adversity in the construction industry. The employee’s termination was to send a message to other workers that those types of comments will not be tolerated by their employer. It was also to send a message that they will uphold their workplace policies as they had put a lot of time, effort, and money in ensuring that it was available and understood by employees.
The employee’s union representatives argued that the quality of the investigation was faulty. That the employer had refused to interview the employee who made the comment, or any key witnesses. Furthermore, no notes were taken during the termination meeting. Due to these decisions the employee was not given an opportunity to respond to the allegations against him.
The union’s main points were that disciplinary action was required, however termination was an excessive decision. Citing multiple cases where more harmful comments were said without resulting in termination. Where termination should only be considered as a last resort.
Harsh termination results in redeployment
In the end the Arbitrator had agreed with the employee and their union representative. Disciplinary action was required as the comment was foolish and inappropriate. And the Arbitrator acknowledged the employer’s efforts to create a safe and respectful workplace.
However, the decision to terminate the employer’s employment was excessive and too harsh over a singular comment said to no one in particular. The final decision was to reverse the employee’s termination to a three-day suspension, and compensation for lost wages.
The moral of the case is that to say a singular comment, even if it does technically constitute sexual harassment, will unlikely result in a fair dismissal. There is leniency and understanding that employees and human and mistakes happen. In the above case, the company should have conducted a thorough investigation. Then disciplined the employee internally with a warning that if the behaviour continues then his employment may be at jeopardy.
Compliments can just be compliments
In the case of Marlein Eldary v Songbirds Montessori School Inc. and Mehrandokht Alizadeh, the Applicant, Ms Eldary, claimed that a male coworker complimenting her hair, clothes, and shoes infringed her rights and constituted sexual harassment.
The Tribunal agreed that in some circumstances compliments about a woman’s physical appearance can be undermining. Diminishing a female employee’s professionalism and create a psychosocially unhealthy working environment.
However, in this case the Tribunal found that the compliments to Ms Eldary did not rise to that level. There was nothing to insinuate that the commenter intended any harm, nor that they could have reasonably known that they were unwelcomed. The Tribunal was careful not to discourage acts of genuine compliments and attempts to be pleasant as that was not the intention of the sexual harassment legislation. However, this is a fine line.
I do not like the compliments
In the alternative scenario, where an employee has been complimented and did not like it, what can they do? If an employee is receiving unwelcomed attention then the first step is to always inform the commentor. In most cases they genuinely did not have any any negative intention. Therefore, the behaviour should cease.
In the event that the comments and compliments continue, it is important to notify Human Resources or someone with authority. This not only keeps a record of what has happened, but allows the employer to intervene and place dispute resolution tactics. This may include mediation and investigations. If after all these efforts and the behaviour does not improve then the employee may want to consider placing an Form 75 Sexual Harassment claim with Fair Work.
This allows the employees concerns and complaints to be heard in from of a trained commissioner. With the intention for employers and perpetrators to be more proactive about the conduct the employee has experienced. Typically these types of claims are typically remedied with financial compensation. Additionally, clients have been satisfied that they were able to hold their employer and perpetrator accountable for their actions.
If your compliments had resulted in dismissal, call us today
We at Whole New Approach are Australia’s leading workplace mediators and problem solvers. AWNA are not lawyers but industry professionals with over 25 years of experience. If you have been unfairly dismissed, feel stuck in a toxic workplace or getting to the point of being forced to resign call us first. Always explore your options before taking a decision.
If you have experienced adverse action due to making a complaint, or due to your race, gender or religion, call us. We can guide you through the process of lodging a general protection claim, harassment, discrimination or another workplace rights violation. We offer a no win, no fee service. And your first consultation with us is free.
Contact A Whole New Approach today at 1800 333 666 to access your free consultation.
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