Female workers dismissed for sexual harassment

The Fair Work Commission has rejected the unfair dismissal claim of a female fly-in fly-out (FIFO) worker who sexually harassed two colleagues. The “extremely intoxicated” employee of mining giant BHP argued that there was no link between her employment and the two incidents. However, these arguments came up short for reasons we reveal in this article. 

Let’s take look at the shocking events of this case – Evelyn Josey V OS MCAP Pty Ltd [2024]. Also in this article, we share the story of a female US Army colonel who was fired for sexually assaulting her subordinates. 

Female FIFO worker dismissed for sexual harassment while drunk

Evelyn Josey started working at mining giant BHP’s in-house labour provider OS MCAP on 12 March 2019. She worked as a FIFO worker at the Daunia mining site in Queensland. Ms Josey was considered a dedicated and loyal employee throughout her tenure with the company. However, her conduct on 18 July 2023 raised serious concerns that ultimately led to her dismissal in December 2023.

Drunk worker engages coworker in body rub at airport lounge 

On the day in question, Ms Josey arrived at Brisbane Airport for a flight to Moranbah, Queensland where she was due to start work the following day. Upon her arrival, she was described as “extremely intoxicated” and was seen continuing to drink in the Qantas airport lounge.

“I was just having a little bit of a harder time on that particular day and I didn’t particularly want to go to work and I started drinking really early,” Ms Josey told the Fair Work Commission.

She said that after checking in for her flight, she “went straight to the bar and ordered two bourbon and cokes.” Her coworkers in the airport lounge observed that her behaviour was “out of character and quite erratic.” 

Ms Josey eventually approached a table where her coworkers were drinking. While conversing with one colleague, she turned her back to him and rubbed her body against him. The coworker alleged that Ms Josey had grabbed his penis twice. However, this claim was not substantiated by OS MCAP.

FIFO worker sexually harasses another colleague on flight

The next key incident in this unfair dismissal case took place on the flight to Moranbah, where Ms Josey was seated next to another male colleague. The Fair Work Commission noted that during the flight, “Ms Josey lent on [the coworker], placed her head near his lap, grabbed his arm and tried to hold hands with him multiple times.”

The coworker later reported feeling “extremely uncomfortable and very embarrassed by the touching.” He told the Fair Work Commission that Ms Josey’s “hand moving up his leg and her head moving near his private area felt sexual to him.”

The coworker said that he hoped Ms Josey would cease touching him. However, he noted that she appeared “erratic” and refrained from asking her to stop as “he was worried that she would start screaming or start getting violent.”

FIFO worker ‘embarrassed’ by workplace gossip

The next day, Ms Josey told her supervisor that she had been under the influence of alcohol and could not complete her shift. She subsequently returned to Brisbane and went on five weeks of personal leave.

Upon her return to work, Ms Josey claimed that she had been subjected to gossip concerning the events of 18 July 2023. At her unfair dismissal hearing, she told the Fair Work Commission that she “felt ostracised” and “embarrassed” by the rumours. Ms Josey claimed that she approached one of the harassed coworkers to apologise, saying:

“Reece for what it’s worth, I’m so sorry for sleeping on you. I am mortified that I was drunk in the first place and mortified that I was sleeping and potentially slept on you. I don’t remember doing this, but if I did, I’m so sorry. “I hope that you can one day find it in your heart to forgive me.”

However, the coworker disputed this. He told the Fair Work Commission that Ms Josey simply said “sorry for what happened” and “hope you can forgive me for what happened.”

Worker is dismissed for sexual harassment

OS MCAP received multiple complaints regarding Ms Josey’s behaviour, prompting an internal investigation. On 30 October 2023, the company stood her down with pay while the investigation was underway.

The investigation found that Ms Josey’s actions constituted serious and wilful misconduct, breaching the company’s code of conduct. The investigation culminated in a show-cause meeting, which resulted in her dismissal on 21 December 2023.

Ms Josey subsequently lodged an unfair dismissal application with the Fair Work Commission. She sought reinstatement to her position, along with compensation for lost wages, or alternatively, six months of income.

Worker argues case for unfair dismissal

Ms Josey told the Fair Work Commission that events in her personal life had led her to get drunk on the day in question. Ms Josey said that her 26-year relationship with her partner had ended in December 2021, leading to increased alcohol consumption. 

“I was just having a little bit of a harder time on that particular day, and I didn’t particularly want to go to work, and I started drinking really early,” Ms Josey told the Fair Work Commission.

While Ms Josey refuted the witness accounts of her coworkers, she admitted that she could not adequately recall the two incidents. She argued that her dismissal was unfair as the first incident occurred “out of hours conduct in a social setting and an interaction with a friend.”

Ms Josey also claimed this incident had “insufficient connection to the employment” on the basis that OS MCAP did not require her to visit the Qantas lounge. She said that she had since sought treatment for alcoholism and had been sober since the incidents.

Fair Work Commission decides

A Ms Josey’s unfair dismissal hearing, the Fair Work Commission took issue with her arguments. Notably, with her claim that the incident took place out of hours.

The commission noted that “out of hours conduct can be a valid reason for dismissal where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee.” 

The Fair Work Commission said that Ms Josey’s behaviour that day “was likely to do all of these things.” Regarding her claim that there was no link between the incident and her employment, the commission once again disagreed. It said that Ms Josey “would not have been at the airport in the first place if she was not required to attend in order to board a flight to commence her rostered shift.”

Conduct amounted to sexual harassment

The Fair Work Commission ruled that the first incident in the airport lounge constituted harassment. The second incident, which took place on the flight, was found to have been sexual harassment. It was noted that both incidents violated OS MCAP’s code of conduct and workplace policies. 

With respect to the second incident, the commission conceded that Ms Josey’s intoxication may well have hindered her capacity to assess the impact that her conduct may have had” on her coworker. However, it also noted that “it does not and cannot excuse it.”

The Fair Work Commission noted that OS MCAP had “obligations to protect the health and safety of its workforce and their legislated positive duty to eliminate sexual harassment in the workplace.”

The commission therefore ruled that OS MCAP had valid grounds for terminating Ms Josey’s employment based on the findings of serious misconduct. Ms Josey’s unfair dismissal claim was thereafter dismissed.

Female army colonel dismissed for ‘forcefully kissing’ subordinate

Another case of a female employee dismissed for sexual harassment or inappropriate workplace behavior made global headlines in April 2023. The story involved 44-year-old US Army colonel Meghann Sullivan, who was fired from her command due to serious allegations of sexual misconduct. 

Ms Sullivan had a distinguished military career spanning over 20 years. She made history in June 2021 when she became the first woman to command a Security Force Assistance Brigade battalion. Her promotion was celebrated as a significant achievement for gender representation within the Army.

A general who oversaw Ms Sullivan’s appointment to the battalion described her as a “phenomenal engineer.” He also acknowledged her role in fostering diversity and inclusion within military ranks. Ms Sullivan expressed her commitment to these values, stating, “I am excited for young women to see that you can look and act different and be successful.”

Allegations of misconduct

The allegations against Ms Sullivan emerged in April 2023 and included claims of sexual harassment and assault. Specific accusations involved Ms Sullivan “forcibly kissing” at least two male soldiers. She had also allegedly inappropriately grabbed another soldier below the belt without consent. Reports indicated that her actions were part of a broader pattern of misconduct towards her subordinates.

The investigation into these allegations suggested that alcohol may have been a contributing factor in some of the incidents. As details of the investigation were revealed, sources indicated that Ms Sullivan’s behaviour had created a troubling environment for those under her command.

The US Army initiated an investigation into Ms Sullivan’s conduct, which lasted several months. She was officially relieved of her command in October 2023 due to a “lack of confidence” in her ability to lead. 

Worker dismissed for reply-all email asking ‘what colour panties you have on’

Another story of inappropriate workplace behaviour made global headlines in July 2024. The story involved US-based Jovan Thomas, a former employee of the San Francisco District Attorney’s Office. He was dismissed after sending an email to all staff, including the District Attorney, which asked “what colour panties you have on.”

Mr Thomas has filed a lawsuit against his former employer, claiming that he sent the email accidentally. What made it worse, however, was that it was sent in reply to a meeting invitation from the District Attorney Brooke. The meeting was to discuss anti-discrimination.

Mr Thomas alleges he had meant to send this message as a private, lighthearted text to a friend and fraternity brother. However, when the meeting invitation appeared in his inbox, he mistakenly replied to that email thread instead.

Worker dismissed for “misogynistic” behaviour

Mr Thomas, who had worked as a victim witness advocate at the District Attorney’s Office since 2015, claims he was notified of his termination later that same day. A spokesperson for the District Attorney described Mr Thomas’s email as “misogynistic behavior” that violated the office’s code of conduct.

After sending the email, Thomas quickly followed up with an apology to his colleagues, expressing regret over the incident. 

In his lawsuit, Mr Thomas accuses the District Attorney’s Office of defamation, claiming that the office contacted the press about the email shortly after it was sent. He claims the office shared misleading information with the media. This includes suggestions that the email incident was part of a broader history of alleged misconduct. 

“Absolutely no one who received [the email] could reasonably have believed that [Mr Thomas] had actually inquired of his boss, the District Attorney of San Francisco, what colour panties she was wearing, either seriously or as a joke,” the lawsuit states, adding that Mr Thomas “immediately apologised” upon realising his mistake.

The lawsuit also alleges that members of the District Attorney’s Office disseminated “false, fraudulent, malicious and humiliating statements” about Mr Thomas. He claims this damaged his reputation and career prospects. 

Worker had prior allegations of sexual harassment

Mr Thomas’s dismissal and the ensuing media coverage also brought attention to a prior legal case involving him. In 2018, a woman filed a lawsuit accusing him of sexual harassment while he was assisting her as a victim advocate. Mr Thomas was later removed as a defendant from that case after a judge determined that the claims did not fall under the purview of his employment at the District Attorney’s Office.

Mr Thomas’s account of the incident

In describing the events that led to the mistaken email, Mr Thomas explained that he had been texting with his fraternity brother, who was grieving the recent loss of his father. He said the email’s wording was intended as a joke to lighten his friend’s spirits. Court documents describe the message as part of a “playful text” intended to offer comfort to a friend in distress.

Reflecting on the incident, Mr Thomas expressed frustration over what he sees as the office’s decision to publicly characterise him in a negative light. “If it would have stayed in-house, I would be OK,” Thomas said.

In addition to defamation, Mr Thomas is pursuing claims of invasion of privacy and emotional distress. He maintains that the incident has made it difficult to secure new employment. 

Have you been unfairly dismissed?

We at a Whole New Approach are Australia’s leading workplace mediators. If you have faced unfair dismissal, dismissed for sexual harassment, adverse action or any workplace rights violation, call us today.

We can help you take action through the Fair Work Commission to seek reinstatement or financial compensation. But act fast, as you only have 21 days from the date of your dismissal to file a claim.

Call us today on 1300 766 700 for a free and private conversation about your situation.