Workplace Culture No Excuse for Sexual Harassment. Do Something About It!

The Fair Work Commission has upheld the termination of an employee, finding that despite the employer’s “rather unusual” workplace culture, did not excuse the employee’s sexual harassment.

It is well established that the workplace culture of an organisation should reflect the values a business upholds and expects from its employees. However, it is becoming increasingly difficult to determine what conduct is acceptable in the context of that particular workplace. For instance, swearing is less likely to be tolerated in an office environment but it may form part of every day conversation amongst employees on a building site or factory setting. Thus, employers and employees are struggling to distinguish between a relaxed workplace culture and a workplace that tolerates unlawful or inappropriate behaviour.

In Matthew Thompson v 360 Finance Pty Ltd,[1] the employee was dismissed after posting two memes on his personal Facebook page, one of which contained a sexual connotation referencing a female employee. Initially, the employee had sought permission from the female employee to post a meme that had sexual connotations directly related to her. The female employee consented but this was later revoked as she began to receive several comments and responses from others. The employee was asked to remove the post, which he eventually did. The employee removed the post but then proceeded to post a second meme along with the statement, “That moment after you’ve dropped a meme with the aim to upset some cunts…. And you get to hear, cunts are upset”.

Consequently, the employer commenced disciplinary action and the Applicant was terminated on the grounds that the posting of these memes constituted social media misuse, misuse of company property, sexual harassment and a failure to adhere to the employer’s policies or act in its best interests.

The employee argued that “all sorts of conduct” was permitted by the employer, such as racially provocative and racist emails were sent around, a racist Secret Santa gifts was presented to a colleague by the female employee, sexist emails being sent between employees, regular sexual harassment of staff in the form of sexual innuendo, public groping and sexually suggestive comments, whether verbally or in writing, frequent dissemination of rumours and gossip, including as to potential interoffice relationships and regular swearing. The employee asserted that this behaviour occurred openly and seemingly without consequences from management.

Despite the employee’s assertions, the employee had received a formal warning regarding similar conduct. However, the employee was issued three separate “final” warnings, two of which were related to sexist and derogatory comments.

Deputy President Lake accepted that the culture at the employer’s business fell considerably short of the standards expected of a workplace. Nevertheless, viewing the employee’s behaviour against this backdrop does not mitigate the severity of the employee’s inappropriate and unlawful actions. Despite the series of warnings, Deputy President Lake accepted that the nature in which they were issued demonstrate an imperfect disciplinary process that may have caused confusion to the employee about what was acceptable and not.

The employee was found to have lacked insight and remorse in regards to the reasonably foreseeable consequences of his actions, given the meme was sexually explicit and posted publically. Despite a workplace that typically tolerates a more “robust” workplace culture, the employee’s conduct was still held to be sufficiently serious and inappropriate so as to constitute a valid reason for dismissal. The dismissal was deemed fair.

This case demonstrates the importance of workplace culture and what is expected of employees. Promoting a positive workplace culture, free of discrimination and sexual harassment, will create a safe work environment for all employees. In order to achieve this, employers should ensure their policies and procedures are regularly updated and enforced. Employees should be familiar with these policies and procedures through extensive training and education. When educating employees about these policies and procedures, they become aware of what actions are inappropriate and unlawful. In addition, employers should ensure they properly discipline employees who contravene these policies and procedures. By taking the appropriate disciplinary action when required, employees become aware that there are serious consequences for their actions and this will deter them from engaging in this unlawful and inappropriate conduct.

This also promotes a workplace culture that does not tolerate unlawful or inappropriate behaviour. When employees are aware that their employer will take disciplinary action in response to this unlawful conduct and do it in a manner that is fair and just across the board, it enforces a standard of behaviour expected of employees. Employees become aware of the potential disciplinary consequences of their actions and thus, they cannot blame the culture or their ignorance to justify their actions.

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[1] [2021] FWC 2570.

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