By Sooraj Sidhu and Lindsay Carroll, NRA Legal
The summary dismissal of a 47 year old employee at a major private hospital in Sydney has been upheld by the Fair Work Commission (FWC) after finding that he sent an Instagram post “of a sexual nature” to a young nurse outside of work hours.
This decision follows an announcement by the Australian Human Rights Commission (AHRC) in June that it will conduct a 12-month national inquiry into workplace sexual harassment.
Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital [2018] FWC 3921 (2 July 2018)
The claim
Mr Bridgwater brought an application for unfair dismissal after being dismissed for serious misconduct by the Prince of Wales Private Hospital.
Following an investigation into a nurse’s complaint, Mr Bridgwater was deemed to have breached the Company’s harassment and discrimination policy by engaging in conduct of an offensive, unwelcome and sexual nature.
Specifically, Mr Bridgwater had sent “a highly offensive and unwelcome message of a sexual nature” to a new graduate nurse using Instagram outside of work hours and whilst drinking at a pub.
The argument
As is often raised by employees who have been terminated for sexual harassment, Mr Bridgwater argued that the nurse failed to object to the message and that her response did not objectively convey that the message was unwelcome.
He also submitted that because they did not work together, the communication did not have the potential to impact their working relationship, nor did it occur during work hours.
The decision
Senior Deputy President Jonathan Hamberger disagreed with Mr Bridgwater’s contentions and dismissed his application. In his view, the nurse’s response was designed to ‘downplay’ his message and curb any further communication.
Whilst the conduct occurred outside of work hours at a pub where Mr Bridgwater had been consuming alcohol, “one cannot ignore that the applicant and the nurse … would on occasion be working in close proximity”, said Senior Deputy President Hamberger.
Despite the nurse’s delay in raising a complaint, it was accepted that Mr Bridgwater had received training on the hospital’s policy and that the breach constituted a valid reason for dismissal.
In reaching its decision, the FWC also took into account the age imbalance between Mr Bridgwater and the nurse, his failure to keep other allegations confidential as well as the specialised nature of his occupation, length of service and anxiety disorder.
Inquiry into workplace sexual harassment
The AHRC has recently announced it will be launching an inquiry into Australian workplaces to examine the scale, drivers and consequences of sexual harassment and provide recommendations which address the issue.
The inquiry will involve national surveys specific to individual sectors, an assessment of the current legal framework and an analysis of the impacts of sexual harassment on individuals and businesses.
There will be a particular focus on the use of technology and social media to perpetrate sex-based harassment and a review of the subsequent report in three years’ time.
Employers are encouraged to make submissions to the AHRC detailing their practices, experiences and concerns.
What does this mean for me?
Retailers that foster, tolerate or even condone inappropriate behaviours such as sex-based harassment face significant legal, commercial and reputational risks.
In order to combat various claims in court and vicarious liability, it is imperative that retailers implement a lawful policy on sexual harassment and educate their workforce on what this actually means.
Further, recent case law demonstrates that the FWC will not accept employees in positions of leadership who foster an uncomfortable environment, nor will it accept the absence of any objection by victims of sexual harassment as an excuse for such behaviour.