#TimesUp on inappropriate workplace behaviours

The Fair Work Commission is showing little tolerance for inappropriate workplace behaviour in the #metoo era.

A number of Unfair Dismissal decisions before the Fair Work Commission this year reflect that the #metoo movement is gaining traction in Australia, with employers beginning to adopt a much higher standard of what is appropriate in the workplace, and taking swift action in dismissing workers engaging in inappropriate behaviour. The Commission has traditionally shown limited tolerance for sexual harassment or misconduct, but recent cases have shown that it’s also solidified this position in response to changing community standards. The recent cases show a reluctance by the Commission to accept employee’s excuses for bad behaviour, often scathing in its response to a sacked employee’s claims that they were only having a joke or meant no offence. Excuses that they were intoxicated, suffering mental health problems, or that the conduct in question occurred out of work hours have done little to win the Commission over. Australian employers, with the backing of the Commission, appear to be signalling that inappropriate behaviour in the workforce will no longer be tolerated.

In the case of Carmelo Sapienza v Cash in Transit Pty Ltd T /A Secure Cash [2018] FWC 607, Mr Sapienza’s employment was terminated after complaints were received regarding inappropriate sexual behaviour by Mr Sapienza when visiting client’s premises, including hugging two female employees 30 years his junior, and asking for kisses and phone numbers. The Commission rejected Mr Sapienza’s assertions that he was merely being cheeky and joking around, and any physical contact was friendly and consensual. The Commission held: “Despite Mr Sapienza’s explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naïve, to say the least.” The Commission indicated that ignorance won’t be tolerated stating that if Mr Sapianza didn’t know or appreciate that that he engaged in inappropriate behaviour, which may not be reciprocated willingly by much younger persons, then he ought to have. The Commission, in this case, was willing to overlook some clear procedural deficiencies involved in Mr Sapienza’s dismissal given the gravity of the conduct.

In Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761 the Commission again supported the sacking of an older man unwilling to recognise the seriousness of his conduct which included making excessive sexual remarks and engaging in inappropriate physical conduct with young female subordinates, including sharing his chair and massaging staff. The Commission found that Mr Abarra demonstrated a complete lack of remorse or recognition of the seriousness of his conduct, with Mr Abarra’s arguing that because the staff laughed when he made the sexual comments and did not tell him to stop, he could not have been offending anyone. The Commission held that Mr Abarra’s comments to the young female employees “were in fact a rather blatant form of benevolent sexism which has no place in the workplace”.

Out of hours inappropriate behaviour has also been found to be within the employer’s domain. In Colwell v Sydney International Container Terminals P/L [2018] FWC 174, the Commission upheld the dismissal of a worker who sent a pornographic video to 19 co-workers outside of work hours despite no formal complaint being lodged by the employees to whom the video was sent. The sacked employee asserted that he didn’t mean to cause offence, he thought it was a “bit of a joke”, “a silly mistake on the drink, and he displayed genuine remorse afterwards. Despite arguing that the video was sent in his non-work hours and as such it wasn’t for the employer to regulate the appropriateness of communications between friends outside the workplace, the Commission determined that Mr Colwell was Facebook friends with co-workers only because of their work relationship, and as such there was a connection between out-of-hours conduct and the employment. The dissemination of pornography to employees was clearly contrary to the values and culture that the employer was endeavouring to engender, including the minimisation of sexual harassment of female employees.

In Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148 the Commission upheld the dismissal of a manager, with 30 years tenure, for sending numerous salacious texts to younger female co-workers, who failed to recognise the inappropriateness of the frequency, timing and content of his messages. Despite the manager’s insistence that the text messages were both welcomed and reciprocated, the Commission observed that:

“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 be directed towards them in their workplace.” The employer and the Commission rightly discredited any attempt by Mr Reguero-Puente to argue that because the junior employees did not explicitly tell him to stop, the conduct was welcome, particularly given the power imbalance caused by the age and seniority differentials between Mr Reguero-Puente and the employees he harassed.

In Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital [2018] FWC 3921, a 47 year old employee was dismissed for serious misconduct after he was found to have engaged in inappropriate conduct towards a young graduate nurse in sending a lewd Instagram post. Mr Bridgwater argued that his dismissal was harsh on the basis that the message was at the lower end of the spectrum of sexual harassment, the nurse’s response suggested it wasn’t unwelcome, and it was sent outside of work hours. The Commission decisively rejected all such excuses, arguing against Mr Bridgwater’s attempts to minimise the nature of the message sent, finding that it was a highly offensive and unwelcome message of a sexual nature, in clear contradiction of the employer’s “detailed” policy on sexual harassment, in which Mr Bridgwater had received training.

Concluding comments

Some Australian employers appear to be losing patience with inappropriate sexual behaviour which puts the health and safety of its workplace at risk. In the #metoo era with an increased public awareness of the incidence of workplace sexual harassment, employers are starting to recognise that if allegations of inappropriate workplace behaviour and sexual harassment are not adequately responded to, they may instead be played out in the media or through litigation against the employer for its part in the misconduct. Rather than minimising or justifying behaviours, or victim blaming, some employers are indicating that inappropriate sexual comments, the sharing of pornography, lewd messages, everyday sexism, and unwanted physical contact will no longer be seen as just having a joke with no harm intended. Instead, with the apparent support of the Fair Work Commission, #TimesUp for some workplace sexual harassers.

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May 31

Managing workplace relationships: What we can learn from Barnaby Joyce

Everyone’s favourite Kiwi/Australian politician Barnaby Joyce has been in the spotlight again recently due to his upcoming interview with his partner Vikki Campion on Channel Seven’s Sunday Night program. From an employment law perspective (we always see things from an employment law perspective), it has again brought to light the topic of workplace relationships. No doubt you would recall that in February in response to the Joyce-Campion relationship, Prime Minister Malcolm Turnbull responded by banning all sexual relationships between ministers and their staffers. But is this suitable for other Australian workplaces, or is this delving a little too far into the private lives of employees?

Relationships and workplace romances have traditionally been a very sensitive issue with many employers unsure how much, or how little, they should get involved. On the one hand, they have a significant interest in not only ensuring a happy productive workplace (which may not be the case should a relationship sour) and avoiding conflicts of interest, but also an obligation to their employees in relation to sexual harassment and their health and wellbeing generally. On the other hand, many employers would be reluctant to tell consenting adults what they can and cannot do in their own time, not to mention questioning the extent to which any intervention would be enforceable anyway.

Most Australians will know of someone who has met a significant other in the workplace (there’s clearly something romantic about the water cooler and the photocopier). So whilst employers should not try and stop workplace relationships, as this would be unlikely to work anyway, there are certainly steps they can take to mitigate legal risk and also to minimise potential disruption in the workplace. One such step that employers can take is implementing a ‘Disclosure/Workplace Relationships Policy’ and a ‘Conflict of Interest Policy’. These policies should, at a minimum, address the following key issues:

1. Require self-disclosure

Employees should be required to disclose any relationships to a suitable person, such as a HR manager. A discussion can then be had about any necessary changes that may be required in order to minimise risk or disruption in relation to the relationship. The HR manager may require the employee to outline that the relationship will not influence their work or the business.

Manage any actual, or perceived, conflicts of interest

Once a disclosure has been made, changes in the workplace may need to be made to manage any actual, or perceived, conflicts of interest. This is especially the case where a relationship has formed between managers and their subordinates. Common solutions to managing conflict of interest may include reassigning one or both staff members to different departments, or removing managers from any involvement in decision making regarding performance or promotion where it relates to their partner.

Beware of power imbalances

Whilst employers should generally avoid outright banning relationships, in some circumstances it may be inappropriate for the relationship to continue. For instance, in small businesses it would be impossible to shift either employee to a different department, so from a conflict of interest perspective, the employees may face a difficult decision between continuing in their role, or their relationship.

Similarly, a high level executive such as a CEO or partner involved in a relationship with a very junior employee such as a graduate may be discouraged so as to avoid any claims to favouritism or the potentially messy fallout should the relationship sour.

Outline what is, and is not, acceptable behaviour in the workplace

Whilst employers should not try and stop relationships between employees, they can certainly manage the way it manifests in the workplace. The last thing that an employer would want is for a new relationship to spill over into the workplace, making other staff uncomfortable, and affecting morale and productivity. As such, the policy should clearly outline that all staff must interact in a professional manner at all times in the workplace. This means there should be no inappropriate physical contact (such as kissing) and personal discussions should be limited.

The policy should also address sexual harassment, and outline that although individuals may have been in a consensual relationship, that does not mean that sexual harassment may not occur when the relationship ends. Employers have a duty of care towards their employees to ensure their wellbeing, and may be vicariously liable should sexual harassment occur.

Outline the consequences of failing to follow the policy

From an employer’s perspective, there are serious issues, such as conflict of interest and sexual harassment, that can be related to workplace relationships. As such, any policy on these issues needs to expressly state that disciplinary action, including dismissal, may be taken where the Disclosure/Workplace Relationships Policy or Conflict of Interest Policy is breached. This includes where an employee has failed to adequately disclose a new relationship.

Indeed, a case in the Fair Work Commission in 2015, M v Westpac Banking Corporation [2015] FWC 2087, rejected an unfair dismissal claim where a Westpac manager was fired for failing to disclose an affair with one of their subordinates.

Final thoughts

Managing relationships in the workplace need not be the minefield that employers may expect. There are some relatively easy steps that can be implemented to help manage workplace relationships that do not deprive consenting adults of their freedom and dignity to do what they please in their own time. And who knows, if a properly managed and adhered to Disclosure/Workplace Relationships Policy had been in place in Parliament House, maybe Barnaby would still be Deputy Prime Minister.

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October 30

Workplace sexual harassment and the culture of silence: Are non-disclosure agreements to blame?

Harvey Weinstein has been in the news for all the wrong reasons recently. The New York Times investigative article on 5 October 2017 exposed Weinstein’s 30-year history of alleged sexual harassment and assault of young actresses and female employees. Since this article, many other women have come forward with their stories relating to Weinstein and his inappropriate and unacceptable behaviour. Weinstein’s demise has been swift, with his removal from the Academy of Motion Picture Arts and Sciences, the Producers Guild of America and his own film production company, Weinstein Company, firing him.

At first glance, it seems inexplicable that Weinstein could continue to allegedly sexually harass and sexually assault for over 30 years without his behaviour becoming public, or charges being laid. However, what has also recently come to light is that Weinstein has reached at least 8 settlement agreements according to The New York Times. Such settlement agreements involved Weinstein paying a sum of money to the victim, who was then prohibited from discussing the matter by a non-disclosure agreement.

Non-disclosure provisions are also common practice in settlement agreements in Australian workplaces. They often involve standard confidentiality terms that prohibit either party from disclosing certain facts such as the identity of certain people and the settlement amount. Often, both parties are satisfied with this outcome. The perpetrator protects their reputation by avoiding having criminal or civil proceedings brought against them whilst the victim avoids having to take legal action and reliving traumatic experiences in a public setting. There is also a fear that career prospects will be damaged if you have a reputation for suing.

Despite the existence of strong laws prohibiting sexual harassment, this is unfortunately also an issue in the workplace in Australia. In 2016, the Australian Human Rights Commission heard 453 complaints under the Sex Discrimination Act 1984 many of which relate to sexual harassment in the workplace. It is estimated that a staggering 25% of women are sexually harassed over the course of their employment. Whilst it is understandable that victims may wish to avoid reliving a traumatic experience, non-disclosure agreements do nothing to protect other people from becoming victims and allows the Harvey Weinstein’s of the world to continue to avoid facing scrutiny. A serious question must be asked whether employers should be able to use non-disclosure agreements to keep sexual harassment claims secret.

On moral grounds, most people would answer this in the negative since an alleged crime has been committed, and that person should have to face these allegations in a court. However, there are also compelling legal arguments that employers should not be able to cover up workplace sexual harassment using a NDA.

It is an implied term in all employment contracts in Australia that employers have an obligation to provide their employers with a safe place to work. Commonly in sexual harassment cases, such as Weinstein’s, the victim agrees to settlement terms and exits the company whilst the perpetrator, usually a senior employee or manager, remains. The employer’s decision to retain the perpetrator likely places other employees at risk of experiencing sexual harassment and thus breaches the right of employees to have a safe workplace. However, because the settlement terms are confidential, and the victim is bound by a NDA, often the employees are none the wiser and have no knowledge that this implied term of their employment contract is being breached.

There is another legal argument that that non-disclosure agreements should be void as a matter of law. It has long been recognised that contracts that are contrary to public policy, such as those that are prejudicial to the administration of justice, are unenforceable. Therefore, it stands to question, are non-disclosure agreements in confidential settlements enforceable? Clearly, there is a significant public interest in preventing persistent sexual predators like Harvey Weinstein from continuing their unsavoury behaviour. There is also clearly a public interest in allowing the administration of justice to take its course.

Despite legal arguments that employers should not be able to use NDAs, unfortunately the practical reality ultimately wins. Victims who have signed NDAs are fearful of speaking out. In addition, the potential legal repercussions for breaching a NDA, depending on the contractual terms, can be quite costly. Of course, there is also the power imbalance between the employer and employee that contributes to the culture of silence and ensures NDAs regarding sexual harassment are rarely challenged.

The current use of NDA allows persistent offenders such as Harvey Weinstein to remain unchecked. Perhaps a change in the law is necessary to protect potential future victims of serial sexual harassers in the workplace.

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March 13

Sexual Harassment – are we shooting the messenger?

Dr Gabrielle McMullin has faced fierce criticism for recent comments that females seeking a careers as surgeons should not speak out against sexual harassment. Her message was that while vicitms of this type of harassment may have a valid legal claim, making a complaint is likely to destroy their careers. Some commentators described her comments as “a kick in the guts to workplace gender equality.” While I completely agree that the content of her message was clearly troubling, is her decision to speak in realistic and truthful terms about this issue deserve such condemnation? Or are we simply shooting the messenger?

Purists may argue that Dr McMullin’s suggestions impliedly condone the ‘casting couch’culture within the medical professional, and that female trainee surgeons following her advice to stay quiet are each individually responsible for pushing the problem even further from a solution. Many would even argue that each woman’s acquiescence with harassment is as morally reprehensible than the impugned conduct itself. This may be the case, but I tend to disagree. If the surgical career of a female genuinely faces ruin from standing up to sexual harassment then we should be talking about it, not brushing it under the table. And women in this situation are not individually responsible for the gender equality fight, at the expense of their own professional success. At the very least, a senior female industry practitioner should be entitled to be realistic and honest about the choices of young professionals in her industry. With so many gender equality issues at work, as I mentioned on this previous post, discussion of the issues in purely abstract terms can only be effective as a starting point. There is an inherent conflict between broad notions of right and wrong in social terms, and the individuals choices within the context of their own lives or careers. Denying the existence of this conflict does not make it go away.

Employees are protected to a certain extent against sexual discrimination in the workplace, both by the Sex Discrimination and Fair Work Acts. Historically, the damages awarded have been far less than sufficient, but there have been positive signs that this is also changing.

The problem in this scenario lies with the employees having only very faint legal protection against adverse action AFTER making a complaint. The General Protections in the Fair Work Act are good laws in principle, providing that it is unlawful to take adverse action against an employee or prospective employee for exercising, or proposing to exercise, a workplace right. Dr McMullin’s example of ‘Caroline’, a doctor who’s career was ruined when she made a complaint of sexual harassment, should have been protected by this provision. Those various individuals in the surgical profession that were blocking her career progress because of her earlier complaints were clearly in breach. The problem is that the provisions are too easy to circumvent. At present, employers breaching the General Protections are generally only caught because they didn’t know about the provisions before taking the adverse action. But a sophisticated employers (who are well advised legally), find it too easy to protect themselves from allegations of adverse action, by setting up or fabricating legitimate reasons for their actions in advance. These provisions are where we should be putting our attention.

In the meantime, we should hold off on moral judgements of other people facing tough circumstances. We shouldn’t be critical of those choosing to keep quiet to limit damage of their careers, especially when evidence is so strong that this damage is likely. And senior female practitioners, such as Dr McMullin, should be entitled to speak freely about the realities of their profession, without bearing responsibility for the core issues at fault.

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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