"There is no place for bawdy offensive alpha-male behaviour in the workplace" says FWC

Another day, another decision where the Fair Work Commission (FWC) has confirmed employers should no longer tolerate the intolerable. In this case the Applicant was so brazen as to ask a female colleague for a kiss, and so crude as to tell a male colleague he wanted to "f*ck" his sister. In its decision the FWC made findings under the following headings that I credit to Deputy President Alan Colman.

Did Mr Heesom ask Ms Kingston to kiss him?

Yes. Ms Kingston's evidence was accepted as spontaneous, candid and believable. Mr Heeson's was not. On the one hand he denied the allegations, on the other he sought to pass the behaviour off as a joke.

Did Mr Heesom tell Mr Stevens that he wanted to ‘f*ck’ his sister?

Yes. The FWC found Mr Stevens to be a candid and sincere young man who objected to Mr Heesom making crude remarks about his younger sister.

Did Mr Heesom breach the code of conduct?

Yes. The FWC observed the company’s code of conduct provided that employees must treat other employees with dignity, courtesy and respect and any failure to demonstrate these values may result in disciplinary action, including termination of employment. Further, it prohibited harassment that was defined as including offensive or demeaning statements, jokes, comments or innuendo. The company’s disciplinary policy also identified sexual harassment as a form of serious misconduct justifying summary dismissal. 

It was held that Mr Heesom’s conduct in asking Ms Kingston for a kiss was sexual harassment. She was offended, and shocked and told him ‘to f*ck off’. The conduct was unwelcome, sexual in nature, and unacceptable. The Deputy President further noted that the fact Ms Kingston did not report the incident does not diminish the seriousness of the conduct and held that:

"[Ms Kingston] should not be put in the position where she needs to contemplate whether to make a complaint. She deserves to come to work and be treated with respect... a person might engage in sexual harassment even if the victim were not actually offended, humiliated or intimidated, provided the conduct was unwanted and there was a reasonable possibility of such a reaction. The fact that the target of sexual harassment may respond stoically does not mean that the conduct somehow ceases to be harassment."

The comments about Mr Steven's sister were also unacceptable and in breach of the Code of Conduct. The Deputy President held:

" even without the code of conduct and the disciplinary policy, [the comments] would have constituted misconduct and a valid reason for dismissal. There is no place for bawdy offensive alpha-male behaviour in the workplace."

FWC sends a strong message to employers

This decision, like other recent decisions, sends a strong message to employers that they can, and indeed should, act to stamp out unacceptable behaviour from their workplaces. Allegations of sexual harassment, like all misconduct, need to be confidentially investigated in a timely manner and procedural fairness should be afforded to respondents. However, where the investigation reveals a valid reason for termination employers can proceed to termination of employment.

These decisions are reassuring for employers that have for many years faced the conundrum of either being vicariously liable for failing to take reasonable steps to protect employees from sexual harassment on the one hand, or risking unfair dismissal if they proceed with termination found to be "harsh" on the other.

Employers should actively promulgate their policies and be tenacious in guarding their workplace culture. In doing so they needn't tolerate conduct that is not only unlawful and exposes them to risk, but also compromises the wellbeing of employees and undermines diversity, inclusion and respectful workplace cultures.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances