As views around what constitutes appropriate workplace behaviour evolve, the line between light-hearted banter and sexual harassment can be a source of tension. How an individual views certain workplace behaviour is subjective, but societal standards are increasingly important. The Fair Work Commission (“FWC”) has affirmed the importance of societal standards in a case where issues concerning dismissal for sexual harassment, banter, out of hours conduct and social media misuse were considered.

The distinction between platonic and sexual conduct

The case involved a manager who was 63 years old and had sent his junior colleague (who was 29 years old) Facebook messages. These messages included emojis of a red lipstick kiss and two people kissing, and phrases including “Love you” and “Do you love me”. The manager repeatedly requested a date with his colleague and at a Christmas party kissed the colleague on the cheek while saying “you look so beautiful today”. Following an investigation the manager was found to have engaged in sexual harassment and was summarily dismissed by his employer.

The manager brought an unfair dismissal claim and argued that his conduct was merely friendly and platonic, akin to how he messaged family, and that he viewed his colleague like a granddaughter.

The FWC had to determine whether or not the manager had sexually harassed his colleague, and as part of this had to consider whether the manager’s conduct was conduct of a sexual nature.

Even though on the face of it there was not an overt request for sex or otherwise, it was clear that the intent of the Facebook messages was to create a relationship that went beyond a platonic relationship. Accordingly, and as a necessary inference, it suggested the desire to move to a sexual relationship.

The FWC found that the conduct engaged in by the manager was conduct of a sexual nature and clarified that conduct of a sexual nature does not need to be overt or explicitly graphic. The FWC remarked, “The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction…”

The manager’s intent was irrelevant

The FWC confirmed the irrelevance of the manager’s intent in determining whether the conduct was unwelcomed by his colleague. The manager insisted he did not intend to offend and would have stopped if asked. However, whether conduct is unwelcomed is subjective and relies on the recipient’s experience, not the perpetrator’s motive. The colleague felt humiliated, intimidated and found the conduct disagreeable. Additionally, there was no requirement for the colleague to comment, push back or ask for the behaviour to stop.

The FWC also found that a reasonable person would have anticipated the colleague would be offended, humiliated or intimidated by the manager’s conduct. In coming to this conclusion, the FWC considered a range of factors including the significant age gap and power imbalance.

Societal standards

The employer had gone to some lengths to educate its employees about appropriate workplace behaviour. Training was provided to all employees on commencement with refresher training following every two years. The employer had a Respectful Workplace Policy and Code of Conduct which included a definition of sexual harassment mirroring the legal definition. The manager had completed training on the Code of Conduct which included topics on respectful workplace and sexual harassment.

In considering whether the manager had been unfairly dismissed, the FWC found that even if the conduct engaged in by the manager did not meet the statutory definition of sexual harassment, or had not breached the employer’s policies, there was still a valid reason for dismissal because of community standards and expectations around such behaviour.

The FWC commented that the manager’s “behaviour fell well below community standards and expectations. He was working with a young and vulnerable woman over whom he could exert authority. They were not friends. He admits that he wanted to take her on a date, he sent her numerous unreciprocated inappropriate messages, he repeatedly asked her on dates even though she had declined or was unresponsive. He caused [his colleague] considerable distress.”

Summary dismissal for sexual harassment was justified and the manager’s unfair dismissal application was unsuccessful.

Key takeaways for employers

• Societal standards and expectations: standards have evolved to a point where harassment of a vulnerable person may justify dismissal regardless of other factors. The case gives employers comfort that even without a perfectly worded policy or every procedural step being rigorously followed, there can still be a valid dismissal.
• Awareness: employers need to have an awareness of the interactions taking place between their employees and the subjective views that could be formed about certain interactions. This goes beyond a model which merely relies on complaints being made and requires employers to adopt a proactive approach to informing themselves of what is actually occurring in the workplace.
• Online and out of hours conduct: it has long been accepted that the “workplace” extends beyond the physical workplace to include a place where work is performed, and other venues where there is a connection to the workplace. This decision reinforces that the “workplace” extends beyond a physical premises, and particularly to out of hours online communications.
• Education: employers have a high bar to satisfy to create a respectful workplace. Education and training of leadership is one piece of this and requires employers to provide meaningful training which should be in-person, discusses societal expectations, works through specific scenarios, discusses the irrelevance of intent, considers cultural issues and provides the leadership team the opportunity to ask questions.

To read more about workplace banter being used as a defence to claims of sexual harassment read our blog here.