Everything you always wanted to know about sexual harassment (but were too afraid to ask)

When there is an allegation of sexual harassment, the circumstances are rarely cut and dry and often require HR professionals to deal with grey areas of the law outside of their comfort zone. To make matters more challenging, in cases where allegations are substantiated the consequences can be damaging, if not devastating.

In this webinar, we looked at a few “outside the square” issues in sexual harassment such as:

  • Appearance, dress and personality – factors that “lead” to sexual harassment?
  • How much can you pry about people’s personal relationships outside of work?
  • Sexual assault in the workplace – is it your duty to report to the police?


When a “crude” Facebook post is not enough to justify dismissal

Sam Cahill, Associate

The Fair Work Commission has recently handed down a decision that highlights the need for employers to take a measured approach to disciplinary action in relation to an employee’s use of social media.

The Facts

Mr Colby was employed as a travelling salesman with LED Technologies Pty Ltd (the “Company”). The Company has approximately 20 employees.

In August 2016, during work hours, Mr Colby posted the following comment on his private Facebook account:

“I don’t have time for people’s arrogance. And your [sic] not always right! your position is useless, you don’t do anything all day how much of the bosses c**k did you suck to get were [sic] you are?”

The Company became aware of Mr Colby’s Facebook comment and formed the view that it was directed at the Company and/or its employees. Later on the same day, the Company advised Mr Colby over the phone that his employment was terminated. By that time, Mr Colby had removed the comment from Facebook and clarified, via a further post, that he had posted his initial comment in support of his mother, as he was concerned that she was being mistreated at her place of work. Mr Colby’s mother did not work for the Company.

The Decision

The key issue for determination was whether the Company had a “valid reason” to terminate Mr Colby’s employment. Importantly, the Company dismissed Mr Colby because it considered that his Facebook comments were offensive and directed at the Company and/or its employees.

While Commissioner Gregory agreed that the post was “crude” and “immature”, he found that Mr Colby’s conduct did not provide a valid reason for dismissal, as there was no evidence to suggest that the comments were directed at the Company or any of its employees. The only plausible explanation for the comment was the one that was provided by Mr Colby. In reaching this view, the Commissioner stated that it is not sufficient that the employer believed that it had a valid reason for termination; the reason must be “objectively valid”.

Commissioner Gregory went on to find that the absence of a valid reason rendered the dismissal unfair, and ordered that the Company pay $6,238 in compensation to Mr Colby. In reaching this decision, the Commissioner also considered the fact that the Company failed to provide Mr Colby with an opportunity to respond to the reason for dismissal, while noting that this failure was most likely due to the Company’s small size and lack of expertise in human resource management.

Lessons for Employers

  1. Crude comments by an employee on social media will not automatically provide a valid reason for dismissal where a non-work related social media account is involved.
  2. Employers need to make enquires regarding the suspected misconduct (including online conduct) and the surrounding circumstances, to determine whether it constitutes a valid reason for dismissal.The absence of a valid reason for dismissal will usually render a dismissal unfair.
  3. Giving an employee an opportunity to respond is a crucial step in responding to allegations of misconduct and in providing an employee with procedural fairness.