Home - Out-of-office-hours text is still s-xual misconduct

UpdatesAug 07, 2018

Out-of-office-hours text is still s-xual misconduct

In another important decision about harassment via phone texts outside of work, 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.

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.

Facts

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.

Judgment

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:

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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6 comments
ollie b
Despite the case not taking place until nearly 8 months after the plyje incident miss rose was apparently unable to be in the same room . Despite having been to at least two social events in the mean time
12 months ago
ollie b
ollie b
Both persons involved have apologised to mr Bridgwater saying they were threatened with disciplinary action. If they didn’t continue the case
12 months ago
ollie b
ollie b
This nurse was then dismissed
12 months ago
ollie b
ollie b
The complaint was first raised by another nurse undergoing a mental episode .
12 months ago
ollie b
ollie b
First - the complainant didn’t raise any issue until three months after the fact . Maintaining contact through out
12 months ago
ollie b
ollie b
Couple of missing points here .
12 months ago
ollie b
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