by Frank Chung
A QUEENSLAND mine worker who was sacked after a 19-year-old colleague accused him of touching her backside and making sexual comments has won his job back after the Fair Work Commission ruled there was insufficient evidence to back up the allegations.
Mine technician Vincent Wilson was sacked from his role at the Anglo American Moranbah North Mine in Central Queensland in May this year for allegedly breaching the company's sexual harassment policy.
The woman, known only as "Person A", made a series of unsubstantiated allegations against Mr Wilson in her exit interview, including that he deliberately "patted or squeezed" her backside while they were working in close quarters in a "man basket".
Following the same incident, she also claimed he put her into a "bear hug" and said: "See, I'm stronger than you."
In her affidavit, the woman alleged Mr Wilson "from time to time ... initiated conversations of a sexual nature with me or made sexual innuendos" that made her feel uncomfortable, including "implying that I should pull my pants down" when discussing her tattoos.
She also alleged that during a break one day, while she was talking to crew members about her relationship with her boyfriend, Mr Wilson said words to the effect of: "That's okay, you can come and live with me and you won't have to pay any rent so long as you like gardening and sex and helping around the house."
Mr Wilson strongly denied the allegations in his response to his employer, describing them as "quite offensive". "I did not touch [Person A] at any time, anywhere," he wrote. "I did not make any comment about [Person A's] sex life or ask her for any sexual favours.
"I am confused about why [Person A] would make such allegations about me. I recall that we had a good working relationship.
"I have never had any person make such allegations against me before and I have always got along well with my workmates, whether they be male or female."
He also argued the claims were raised nearly seven months after the incidents were alleged to have occurred and "should have been treated with a high degree of scepticism".
Nevertheless, Anglo American said "on the balance of probabilities" it was satisfied that the allegations were substantiated. "Your conduct is unacceptable in the workplace," the company said in his termination letter.
Mr Wilson took his case to Fair Work, which last week agreed his termination had been "harsh, unjust and unreasonable" as a "valid reason for dismissal was not made out".
The Commission also heard evidence that Person A had herself made sexual comments while in the break room that made another employee uncomfortable, including, "It's steak and head job night next Tuesday at my place" and, "How come it's okay for my boyfriend to play with my arse, but when I play with his, he gets upset?"
In her decision, Fair Work Commissioner Paula Spencer found the woman provided conflicting statements under cross-examination. "Based on the evidence in regard to the allegations, there is not clear and cogent evidence on the relevant test to substantiate the conduct," she said.
"In allegations of conduct of this nature, the onus of proof is on the Respondent to satisfy that the conduct occurred as alleged, on the balance of probabilities. The evidence of the Applicant and Person A was in direct contradiction, and has been carefully considered.
"For clarity, in the current environment of sexual harassment allegations, it is necessary to comment that nothing in this decision should be construed as condoning sexual harassment at a workplace in any way.
"Nor should it be interpreted as limiting the employment of females underground. When allegations of sexual harassment and other conduct are made, the Commission has an obligation to carefully assess the evidence and weigh such against the tests in [section 387] of the [Fair Work] Act."