Dismissed pest claims discrimination
Can you be dismissed for past behaviour? You have leant your lesson. Everybody is entitled to a second chance it may be argued. A worker dismissed for having a history of sexual harassment has attempted to have his dismissal overturned by using a curious legal argument. In his case heard by a Victorian court in October, the worker claimed that his dismissal amounted to discrimination. That is because, in his view, having a history of sexual harassment is a form of ‘social origin. Dismissed pest claims discrimination makes interesting reading and will only take a minute.
Social origin is one of the protected characteristics outlined in the general protections provisions of the Fair Work Act 2009. It’s illegal for an employer to dismiss or adversely harm the employment of an employee due to their social origin. But, as you will see, this sex offender got his legal argument all wrong on several counts. Let’s take a look at this interesting case – Vergara v Bunnings Group Ltd .
Bunnings employee dismissed for his disturbing history
In November 2021, pricing coordinator Claudio Vergara was summarily dismissed by a Victorian Bunnings store after the retailer discovered an unsavory fact about his past. Eight years prior in a civil case brought before the Federal Court, he had been found to have sexually harassed his supervisor while working at Living and Leisure Australia Ltd (LLA). Mr Vergara’s termination letter stated that his conduct was “not aligned with Bunnings values.”
Mr Vergara was found to have sexually harassed LLA’s Chief Financial Officer Jemma Ewin on four occasions. This was while he had joined her team on a 12-week contract in May 2009.
“He made a number of vulgar statements such as he has a big dick and he’s going to f–k me over my desk with it,” “He threw me against the wall. He shoved his face in my face. His face utterly screwed up, trying to kiss me. I nearly wanted to be sick again. And that’s my last memory.”Ms Ewin told the Sydney Morning Herald in 2015.
She also claims that Mr Vergara drugged her during a function at a bar, then raped her in her office. The next day, Ms Ewin said that she felt like she had been thrown down a flight of stairs. She said that her injuries included vaginal tearing, excessive bleeding and a split bottom lip.
Ms Ewin was forced to pursue a civil case against Mr Vergara after the Victorian police had abandoned her case and refused to press charges. In the civil trial, the Federal Court dismissed Ms Ewin’s claim that she had been drugged. However, it also dismissed Mr Vergara’s claim that the sex was consensual. He was ordered by the court to pay Ms Ewin, who now suffers from post-traumatic stress disorder, $476,000 in damages.
Employee takes Bunnings to court
Following his dismissal, Mr Vergara filed an application with the Federal Court to pursue damages, accusing Bunnings of discriminating against him with “outright vengeful intent.” He alleged that Bunnings had contravened the general protections provisions of the Fair Work Act. Specifically, that Bunnings had dismissed him for a proscribed reason – his ‘social origin.’
Mr Vergara also alleged that Bunnings had unfairly dismissed him. Also, that it had breached his employment contract by dismissing him without reason. And that he was dismissed without appropriate notice. When dismissing him, Mr Vergara claimed that Bunnings had not initiated any discussions or conducted an investigation into his history. He argued that he hadn’t breached any terms of his employment contract.
Federal Court dismisses employees argument
In February 2022, Federal Court Deputy Chief Judge Mercuri was tasked with weighing up the arguments of both Mr Vergara and Bunnings. The latter claimed that Mr Vergara’s social origin argument was flawed on two counts. Firstly, even if the court were to accept that having a history of sexual harassment was a form of social origin, Bunnings’ decision to dismiss Mr Vergara based on his social origin is not unlawful.
This is because the Victorian Equal Opportunity Act 2010 doesn’t list social origin as one of the attributes that employers can’t discriminate against. Social origin is in fact a proscribed attribute in the general protections provisions of the federal Fair Work Act. However, the Victorian Equal Opportunity Act takes precedence in Victoria.
Secondly, Judge Mercuri disagreed that Mr Vergara’s history of sexual harassment constituted his social origin. Judge Mercuri dissected the two words as they appear in the Fair Work Act, exploring the grammatical meaning of each. He concluded that there was nothing in the meaning of the term ‘social origin’ that would “lend itself to be said to refer to a person who has had an adverse finding made against them.”
Judge Mercuri asserted that the findings of Mr Vergara’s sexual harassment court case did not categorize him into an identify or group. And it certainly was not a characterization that applied from birth. Judge Mercuri also found that Mr Vergara’s contention that his history of sexual harassment constituted his social origin was flawed within a statutory context. He ruled that the Fair Work Act doesn’t outline that social origin should be interpreted in a way that would include “a finding in a civil claim that a person has engaged in sexual harassment against a co-worker.”
Employees discrimination and unfair dismissal claims are rejected
Judge Mercuri ultimately dismissed Mr Vergara’s claim of discrimination due to social origin. He also found that his unfair dismissal claim was “equally doomed to fail” because it was beyond the Federal Court’s jurisdiction.
Judge Mercuri, however, still allowed Mr Vergara to pursue damages based on his two other claims. That is, for Bunnings’ alleged breach of his contract and the insufficient notice it provided him for his dismissal. Concerning these matters, Judge Mercuri ordered Mr Vergara and Bunnings to come to a settlement through mediation. And if that fails, a trial will be set to settle the matter.
It’s important to keep your employment record clean
The lesson to be learned from this case is that even if you were found to have sexually assaulted a co-worker years ago in a former workplace, such a judgement can follow you throughout your career. Prior to his civil sexual harassment ruling in 2013, Mr Vergara had worked as an accountant. He had told the Federal Court that since that ruling, he had found it difficult to not only find work in that profession, but in alternative ones too.
Now with the Federal Court having dismissed his claims of discrimination due to his history of sexual harassment, Mr Vergara continues to face bleak career prospects. Clearly, Mr Vergara’s attempt to characterize his troubling past as a form of social origin was one made out of desperation.
Sexual harassment is a key concern for Australian employers
In recent years, sexual harassment in the workplace has become a much-discussed issue in Australia and around the globe. The MeToo movement helped bring to light many cases of historical sexual harassment that were simply dismissed by employers in previous years.
Today, Australian employers are understandably concerned with preventing sexual harassment. So too with upholding an image that portrays zero tolerance for such behaviour. Had Bunnings not dismissed Mr Vergara, it would have placed its reputation at risk. Had Mr Vergara not been dismissed by Bunnings, its staff and perhaps members of the public would have discovered his history of sexual harassment. And seeing that Bunnings did not dismiss him, grave allegations would have been made against the company.
Bunnings would be perceived as a company that tolerates sexual harassment, likely causing outrage amongst its staff. And it could have potentially escalated into a public relations issue. This is a risk that the vast majority of employers would not be willing to take. Having stated this, isn’t everybody entitled to a second chance?. Murderers who get out jail are given a house to live in and money to survive. Its a complex question with no simple answer.
Dismissed pest claims discrimination
If you have experienced sexual harassment, bullying or discrimination at work, A Whole New Approach can help. Our expert team can help you lodge a sexual harassment, bullying or discrimination complaint in your state or territory.
We can also help you if you feel you have been unfairly dismissed. We’ve helped over 16,000 Australian workers lodge unfair dismissal claims. In the last 20 years, we have won significant victories for our clients and can help you stand up for your rights the correct way. All Fair work matters, including adverse action, sacked from work matters, abandonment of employment. concerns around casual employment rights, employee rights, whatever give us a call.
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