This case throws us a number of fascinating aspects.

First, this case was one in which the complainant did not know the name of the person she was making serious allegations against (she simply described him, inter alia, as having “olive skin [and being] of Mediterranean heritage”). The Respondent throughout denied he was the man who had done the things alleged. His employer never revealed to him the person who was making these serious allegations against him. Yet, the Commission supported the investigator’s finding he was indeed the culprit, and that he had done and said all the things alleged against him (over his complete denial to the contrary).

Second, ordinarily – perhaps pre-the #MeToo movement (pre-2017) – the general rule for investigators was that,

• Where the Applicant makes an allegation which is completely denied by the person accused, and
• In the absence of any confirmation witnesses or other supporting evidence (e.g. CCTV footage)

the ‘balance of probabilities’ was not met, because the allegation could not be substantiated.

This is especially so for serious allegations in which the Respondent might pay a high price (e.g. summary dismissal). As investigators we did this because we knew the FWC – which is generally more sympathetic to employees in an unfair dismissal claim – would ‘pick holes’ in any investigation which found otherwise. Especially for an employee such as Mr Locastro who is against a large council employer such as Darebin (approx. 1200 employees).

Yet, the game seems to have changed post-the #MeToo movement. The #MeToo movement is defined (by the Merriam-Webster dictionary) as “calling attention to the frequency with which primarily women and girls experience s-xual assault and harassment” which rose to global prominence in 2017. The subsequent widespread media coverage and discussion of s-xual harassment, particularly in the Hollywood entertainment industry, led to high-profile terminations of prominent men in powerful positions, as well as criticism and backlash and an increased intolerance of s-xually-unsafe workplaces, industries and practices.

The Commission seems to acknowledge the game has changed – and the bar is much lower for employers seeking to summarily dismiss employees for s-xual harassment-related conduct in the post-#MeToo era. Masson DP held (at 77):

“While the Applicant’s conduct in his interaction with Ms Smith could never have been acceptable in my view, the contemporary environment has brought that type of behaviour into sharper focus. There can be no tolerance by employers of that type of inappropriate conduct, be that directed towards fellow employees or members of the public.”

The reference to ‘contemporary environment’ can mean little else. Further, this was despite Masson C acknowledging that:

• Mr Locastro was a conscientious employee;
• He had not been the subject of any previous complaint and never engaged in inappropriate conduct prior to the incident that led to his dismissal;
• Mr Locastro was in his 60s and was “not a young man and is certainly closer to the end of his working life than to the beginning of it”;
• A dismissal “is likely to be more profoundly felt in terms of the challenge of securing fresh employment”;
• Indeed, to put it more strongly – a finding upholding the fairness of the Council’s sacking, for a man in his 60s sacked summarily from the Council for s-exual harassment, is likely to render his chances of ever getting another job next to zero.

Yet, the FWC – on balance – found the s-xually-suggestive comment made outweighed all other factors. Therefore, the council’s decision to dismiss ‘on the spot’ without notice was fair, proportional and not harsh in the circumstances.