Fact

Dilara is a full-time employee at the Hawthorne branch of the Perklane Supermarkets Group Ltd ('Perklane'). She normally works at the Deli section, serving customers their choice from the display. Neil is her floor manager. Neil has worked at Perklane for five years. Perklane is a national supermarket chain and employs more than 150 000 workers in Australia.

Neil and Dilara have always had a troubled relationship. Neil started making disparaging remarks about Dilara's appearance soon after she started working at the store. He is usually careful to make these comments when they are alone. Dilara never complained about his remarks, because Neil is her manager and she thought no one would believe her. She also thought that he was much harder on her compared to other employees, often criticising her job performance when there was no clear reason to do so.

On Monday, 18 October 2021, Neil calls Dilara into his office and informs her that he is not satisfied with her work performance and that she must stay behind after work for training. Neils notifies Perklane's Human Resources Department that he is placing Dilara under performance management. Dilara stays behind after her shift ends for the training she was instructed to undertake. However, once she and Neil are alone in the store, he pulls her close to him and tries to kiss her. Dilara strikes out at Neil and scratches his cheek with her ring. She manages to get away from him and she goes home.

The next day, Neil lodges a complaint with Perklane's Human Resources Department that Dilara has assaulted him when he tried to provide her with training.

Question

1

Suppose that your manager decides not to dismiss Dilara, but proceeds with an internal investigation into the events. Dilara and Neil are still working at the same store. The internal investigation may take some weeks to finalise. Advise what Perklane's legislative duties are to ensure a safe working environment for Dilara.

2

After Dilara comes forward with her complaint, one current and one former female employee at the Hawthorne store come forward and reveal that Neil also previously made unwanted sexual advances towards them. In each case, they remained silent, because he actively created the impression that they were poor work performers, and they were concerned that they would get dismissed. The former employee stated that she resigned in the end, because she did not feel safe at work. It was clear that Neil's actions would not stop. The investigation concludes that Neil actively falsified claims of poor work performance against female employees and that his sexual advances constituted sexual harassment.

Your manager wants to dismiss Neil. Advise your manager on whether Neil has access to an unfair dismissal claim in terms of the Fair Work Act 2009 (Cth) and if so, what his chances for success would be if he instituted such a claim.