The employee was found to have struck their colleague between the legs, near and targeting the buttocks/genital area. The employee strongly denied the allegation and sought a review of the finding that their conduct had breached the Code of Conduct.
Our review considered whether, on the balance of probabilities, there was sufficient evidence to determine the employee’s conduct occurred, and if so, was in breach of the agency’s Conduct and Behaviour Policy and Sexual Harassment Policy.
We determined the evidence was compelling and confirmed the incident occurred as alleged. The colleague’s version of events was consistent and credible. While the incident was not directly witnessed, the investigator obtained accounts from staff who were in the area and who observed the colleague flinching in shocked reaction. These accounts were supported by contemporaneous text messages between the colleague and other staff members immediately after the incident, noting the colleague was ‘unsettled’ and ‘visibly shaken’.
On the evidence presented, it was established the applicant’s conduct was unwelcome and inappropriate and amounted to sexual harassment as defined by the agency’s own policy. As the applicant was unable to provide a plausible alternative explanation for what occurred, we recommended the agency confirm the decision.
