By Lauren Drummond

The Fair Work Commission (FWC) has upheld the dismissal of a senior worker who made inappropriate comments and sent sexually explicit text messages to younger and more junior co-workers.

In Ramon Reguero-Puente v City of Rockingham (2018), the worker was employed by Rockhampton City Council (Council) for nearly 30 years. He was dismissed following an investigation into his misconduct, which was undertaken by an independent investigator and that substantiated he had engaged in unlawful sexual harassment towards four female employees.

The worker argued that the dismissal was harsh, unjust or unreasonable for a number of reasons, most emphatically that the text messages he sent to his female employees were consensual and reciprocated.

The various complainants made some of the following observations or concessions:

• in the case of one female colleague, she agreed that she had not sent an express communication telling the employee to stop sending the messages;
• another female employee stated that initially the text messages or communications were responded to but she communicated her objection to the correspondence once they increased in frequency, became more inappropriate and often sent late at night;
• the youngest of the four employees stated that there was pressure to “play along” or respond to the messages having observed the employee’s mistreatment of staff that refused to engage with him via inappropriate text messaging.

The FWC upheld the dismissal. It found:

“The employee’s own evidence reveals a pattern of him befriending much younger female subordinates and then progressively sending more frequent and less appropriate messages […] In this day and age young women should not have to tell their older superiors that 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 directed toward them in their workplace.”

Unlawful sexual harassment

Sexual harassment is an unwelcome sexual advance or a request for sexual favours, or other unwelcome conduct of a sexual nature that in the circumstances, a reasonable person would anticipate that the conduct was likely to offend, humiliate or intimidate the other person.

While unlawful sexual harassment must be “unwelcome”, it does not require the person who is subjected to the conduct to expressly say that the conduct is unwelcome.

In particular, and having regard to the circumstances in this case, there may be a number of reasons why the complainants did not expressly object to the conduct. The employee held a senior position within the department where each of the women worked within the Council, which one employee explained would have “[made her] life extremely difficult [had she reported the behaviour to Human Resources]”.

Lessons for employers

The FWC agreed that the Council’s actions in carrying out its investigation were appropriate, which sought to identify other individuals who had received inappropriate text messages but had not come forward on their own. The FWC also stated that had the policies not existed, the conduct was of such a serious nature that it would have still formed a valid reason for dismissal.

Employers have a duty to their employees to eliminate risks to health and safety, so far as reasonably practicable. They are also face vicarious liability if they don’t take reasonable precautions to prevent staff from being subjected to unlawful sexual harassment.

While the instances of sexual harassment in this case were overt, serious and supported by objective evidence, this will not always be the case. Employers are more likely to reduce unacceptable workplace conduct by taking action at an early stage. It is therefore important for employers to have a robust sexual harassment policy, which puts in place a process for making complaints and clearly sets out:

• the definition of unlawful sexual harassment;
• examples of what may constitute sexual harassment or other inappropriate behaviour;
• that sexual harassment is unlawful and prohibited in the workplace; and
• employees may be subject to disciplinary action if they engage in unlawful sexual harassment or other inappropriate behaviour in breach of the employer’s policies.

Employers should also ensure regular training and reminders to employees about their obligations and rights under the policy, which will also assist to identify unacceptable workplace behaviour.