Out-of-office-hours text is still s-xual misconduct
By Michael Selinger
In another important decision about harassment via phone texts outside of work (Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital (2018)), the Fair Work Commission (FWC) rejected an unfair dismissal claim by a man who sent a message of a sexual nature to a significantly younger colleague outside of work hours.
FWC Senior Deputy President Hamberger did not accept the worker’s claims that his conduct was not serious. It also rejected an argument that outside hours conduct made no impact on the workplace.
Oliver Bridgewater (the Applicant) made an application for unfair dismissal after he was dismissed by Healthscope Operations Pty Ltd (the Respondent) for serious misconduct in breach of the Respondent’s harassment and discrimination policy.
The Applicant sent a message of a sexual nature to a graduate nurse over Instagram while he was in a pub outside office hours. The Applicant and the nurse had not had much previous contact but worked in the same building.
The Applicant submitted that his conduct fell at the “lower end of the spectrum of sexual harassment” and was of a private nature as it occurred outside of work and he did not work directly with the nurse.
Senior Deputy President Hamberger found that the conduct was “objectively, a highly offensive and unwelcome message of a sexual nature.” The fact that it occurred outside of work did not mean that it wouldn’t had an impact in the workplace, particularly as the nurse was expecting to be transferred into a role where she might be working near the Applicant.
The Applicant had previously received training on the company’s detailed harassment and anti-discrimination policy. The Senior Deputy President therefore concluded that the Respondent had a valid reason to dismiss the Applicant, irrespective of the actual conduct taking place outside of business hours.
The Commission also weighed up a number of other factors in ultimately concluding that in all the circumstances, the Applicant’s dismissal was not harsh, unjust or unreasonable. These factors included that:
- there was a significant age imbalance between the Applicant and the nurse;
- the Applicant had previously been warned for failing to keep another workplace allegation against him confidential; and
- there was a long delay in expressing contrition for his conduct.
Lessons for employers
Importantly, the employer in this case was able to demonstrate that it had a clear and effective ant-discrimination/harassment policy in place and, further, that it had trained the Applicant in that policy.
Because the out of work conduct was likely to impact on the workplace, given the future interaction between the Applicant and the graduate nurse, the conduct fell within the scope of the policy.
The case highlights the importance of implementing harassment policies and training staff in them.
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