Appropriate conduct in the workplace – an update

MST Lawyers’ Brenton Allen has advised rental industry employers to take steps to ensure their company policies adequately cover sexual harassment and undertake regular training to inform their employees on what is and is not acceptable behaviour in the workplace.

“A number of recent decisions reflect industrial courts and tribunals are beginning to solidify their position on what is considered appropriate conduct in the workplace, and readily finding conduct amounting to sexual harassment will constitute a valid reason for termination of employment,” Brenton said.

“Recent case trends show a reluctance by industrial courts to accept excuses for bad behaviour, often scorning assertions workers were only having a ‘joke’ or meant no offence. Excuses a person was intoxicated, suffering mental health problems or the conduct in question occurred out of work hours are becoming less and less persuasive,” he said.

“The HRIA too, with the backing of the Fair Work Commission, is now signalling to its members inappropriate sexual behaviour within its membership will not be tolerated.”

Brenton illustrated the following recent case extracts:

• In Carmelo Sapienza v Cash in Transit Pty Ltd T /A Secure Cash [2018] FWC 607, an employee was dismissed after complaints were received regarding inappropriate sexual behaviour by him when visiting client’s premises, including hugging two female employees 30 years his junior and requesting kisses and contact numbers. The Commission rejected assertions the employee was merely ‘joking around’ and physical contact was consensual, indicating ignorance will not be tolerated for such matters. The Commission held:
  “Despite Mr Sapienza’s explanation his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naïve, to say the least.”
• In Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761 the Commission supported the dismissal of an older gentleman unwilling to recognise the seriousness of his conduct, which included making excessive sexual remarks and engaging in inappropriate physical conduct with young female employees, including sharing his chair and massaging staff. The Commission found the employee had demonstrated a complete lack of remorse or recognition of the seriousness of his conduct, despite the employee’s evidence other employees laughed when he made the sexual comments and nobody told him to stop. The employee’s comments were considered to be “a rather blatant form of benevolent sexism which has no place in the workplace”.
• In Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148, the Commission upheld the dismissal of a manager, with 30 years’ service, for sending numerous salacious texts to younger female co-workers, who failed to recognise the inappropriateness of the frequency, timing and content of his messages. Despite the worker’s insistence the texts were welcomed and reciprocated, the Commission observed:
  “In this day and age young women should not have to tell their older superiors they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed towards them in their workplace.”
• In Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital [2018] FWC 3921, a worker was lawfully sacked for misconduct after he engaged in inappropriate conduct towards a young graduate nurse in sending a lewd Instagram post. The worker argued his dismissal was harsh on the basis the message was at the lower end of the spectrum of sexual harassment, the nurse’s response suggested it wasn’t unwelcome, and it was sent outside of work hours. The Commission rejected all such excuses.

“It is clear Australian employers and the Fair Work Commission are losing patience with inappropriate sexual behaviour which puts the health and safety of workers at risk,” Brenton said.

“The HRIA too is moving towards becoming a champion of gender equality. Rather than minimising or justifying behaviours or victim blaming, the HRIA seeks to establish a culture whereby sexism and inappropriate behaviour is inexcusable.”

For more information contact: 03 8540 0266, or visit: www.mst.com.au