Lewd jokes and explicit images: navigating the workplace sexual harassment minefield

By John Wilson

Monday February 27, 2017

The gravity of workplace sexual harassment changed in Australia in July 2014. While at a societal level it has long been accepted that such conduct cannot be tolerated, the law lagged behind. Suing an employer for its failure to prevent sexual harassment was costly and rarely led to a sufficiently large award of damages to justify the financial and emotional expense.

That changed three years ago. The Full Court of the Federal Court’s landmark judgment in Richardson v Oracle Corporation Australia Pty Ltd significantly increased the range of damages available in sexual harassment cases. Compensation in the order of $10,000-$20,000 was suddenly replaced by $100,000 and above, jolting employers into action for fear of costly litigation and significant liability.

The result, to speak generally, has been a greater responsiveness to sexual harassment complaints, more thorough investigations and harsher sanctions (including termination) for perpetrators. For the most part, this cultural change has been rewarded. Two recent unfair dismissal cases have reasserted that serious sexual harassment warrants dismissal.

Workplace culture no excuse

The applicant in Torres v Commissioner of Police was terminated on the grounds that he had engaged in a pattern of lewd behaviour, particularly with junior employees. His indecent conduct included serenading a colleague with a song about anal sex, bragging about his genital piercings, asking a junior employee “do you want to suck my cock” and making vulgar comments about female visitors.

The applicant claimed that this was all “innocent joking”, and not out of place in the particular workplace. He offered: “At work we have a culture, in the police I call you a name and you call me a name, we swear at work and everything and all that they used against me. I do swear at work but so does everybody else”. These comments fell on deaf ears, with the tribunal holding that the dismissal was fair. Neither the fact that he had never received harassment or code of conduct training nor that he was a decorated senior special constable swayed the tribunal.

In Applicant v Respondent, an airline dismissed a cabin crew supervisor after the applicant showed explicit images of a colleague to other colleagues and made inappropriate sexual comments. The cabin crew supervisor, like the police commissioner, pleaded that his actions were in keeping with the workplace culture. He argued that it was “common for there to be discussions of a sexual nature while at work”. These pleas were ignored, and the Fair Work Commission found that the employee’s dismissal was not harsh, unjust or unreasonable.

The above two cases are examples of egregious workplace conduct handled appropriately by the employers, and subsequently upheld by workplace tribunals. Read together, they strongly condemn the use of ‘workplace culture’ as an excuse for poor behaviour and support employers taking swift action in the face of blatant sexual harassment.

An outlier?

However, another recent Fair Work Commission decision is hard to reconcile with this trend. In Renton v Bendigo Health Care Group, Commissioner Michelle Bissett found that an employer was harsh for dismissing a nurse who had tagged two colleagues in a sexually explicit video on Facebook.

Indeed, it is difficult to understand how the actions of the airline employee or senior constable differ wildly in crudity from the behaviour of the nurse in this case. The applicant had shared a video of an obese woman in her underwear ‘dropping’ her stomach onto a man’s back. He captioned this video “[Colleague 1] getting slammed by [Colleague 2] at work yesterday”. The nurse also left tissues and ‘blobs’ of white sorbolene cream on the desk of one of the colleagues tagged in the video, to make it appear — so the employer alleged — that the colleague had been masturbating.

The commissioner was initially sympathetic to the hospital, noting that the matter required a “swift and strong response”. Yet given the Facebook incident was a “one-off” and that previous “jokes” along the same theme as the sorbolene cream incident had not given rise to a reprimand, the dismissal was deemed harsh and an order for compensation made.

Which approach to take?

How are employers to proceed in the face of such contradictory decisions? Notwithstanding Bendigo Health Care, it would be advisable to err on the side of caution. That case seemingly represents an outlier, rather than the rule.

APS departments should adopt a two-pronged approach. HR professionals should ensure strict adherence to the procedures and processes created by the relevant policies, which are designed in accordance with the APS Code of Conduct. At the same time, actions taken should be proportionate and those involved must be afforded procedural fairness. While the administrative apparatus that accompanies Code of Conduct investigation in the APS should, in theory, ensure proportionality and procedural fairness, we see too often that this is not the case.

Sexual harassment is serious issue. Following Richardson, employers — whether public or private — are on notice that such conduct cannot be tolerated, and that the onus is on them to prevent its occurrence in the workplace. Employers must tread carefully when navigating the sexual harassment minefield.

The author acknowledges the assistance of his colleagues Rebecca Richardson and Kieran Pender in the preparation of this article.

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