A recent decision from the Fair Work Commission (FWC) in John Keron v Westpac Banking Corporation [2022] FWC 221 shows the adaptation of the law to changing public standards, in particular the continuing lack of tolerance for any forms of sexual misconduct or harassment in the workplace or at work-related functions.
The specifics
On 10 March 2021 a senior executive of Westpac, along with a number of other colleagues, attended a compulsory workshop organised by the employer.
Following the workshop, the employer organised a networking event for all attendees at a nearby pub. Though most of the attendees at the workshop attended the networking event, it was not compulsory.
After the conclusion of the networking event at 7:00pm, the senior executive and a small handful of other employees stayed around and continued to socialise.
Throughout the evening, two incidents occurred, which subsequently led to the senior executive’s employment being terminated.
Incident One
At approximately 9:45pm, after consuming approximately 10 alcoholic drinks over roughly five hours, the senior executive placed his hand in the middle part of a female colleague’s lower buttock and “in an intimate manner then moved his hand upwards towards her waist”.
Incident Two
After Incident One, the senior executive and remaining employees visited the nearby Crown Casino.
While the senior executive and a male colleague waited in line to gain entry to the Casino, a different female colleague exiting the Casino commented to security to “not let these guys in”.
Later in the evening, the senior executive ran into the same female colleague and said to her, “you f***ing idiot. Why did you do that?”, “you are a w***e” and “you are a b***h”.
The Investigation
The following day, Incident One was reported by the employee to her line manager and later to the police. The employer conducted an investigation and through the course of the interviews, the other female employee reported Incident Two.
The employer concluded their investigation and despite the investigation report recommending that the senior executive be issued with a “show cause letter”, the employer terminated his employment based on serious misconduct.
The Outcome
The Deputy President, in determining whether the dismissal was harsh, unjust or unreasonable, first considered whether the Incidents were sufficiently connected to the senior executive’s employment. She determined that Incident One “occurred on the border between a work-related event and private activities” and was sufficiently connected to their employment, while Incident Two did not have a sufficient connection to the workplace.
From CCTV footage of Incident One, the Deputy President recognised that the female employee was patting the senior executive on his shoulder and back prior to the incident, which in itself is a breach of the company’s policies. However, she found that this did not form an invitation for the female employee to be touched in a sexualised manner or in an intimate location.
While it was argued that the senior executive’s 35 years of unblemished service should mitigate some of the impact of his actions, the Deputy President emphasised the bar as to what “constitutes consent for physical and sexual interactions” has been raised in the broader community with an even higher bar set “for interactions occurring in work-related environments”. Due to extensive media coverage and social commentary, those in workplaces have been put on notice “that their behaviour will attract greater scrutiny and face higher standards than in the past”.
Takeaways
While the Fair Work Commission (FWC) may previously have considered length of service and record of employment for employees and considered activities that occurred after the scheduled end of work functions to be outside of work hours, this decision makes it clear that there is a much broader definition of the workplace than may have previously been considered and much greater scrutiny, and lower tolerance for any acts of sexual harassment or misconduct.
For employers – Make sure your policies are up to date, ensure staff are regularly (at least annually) trained on your policies, consider the supply of alcohol at all work functions, ensure appropriate supervision at work-related functions and adequate instructions on responsible service of alcohol are provided to venue staff.
For employees – Depending on the circumstances, out of hours conduct or behaviour may have a sufficient enough connection to employment to warrant disciplinary action, up to and including dismissal.
Claire Harrison is the Founder and Managing Director of Harrisons, a flourishing HR consulting business that sprouted in 2009 from Claire’s passionate belief that inspiring leaders and superstar employees are the key success factor to any business. With over 20 years’ experience, Claire has worked as a HR Director of multi-national organisations, as a Non-Executive Board Director, and a small business owner. Claire’s corporate career includes working with companies such as BHP, Westpac, Fonterra and Mayne Nickless.
