‘Sharing’ sexually explicit photos and sexy texts on a mobile phone with work colleagues is new way to cause sexual harassment in the workplace.

In Fair Work Commission decision [2016] FWC 7077 (17 October 2016), Commissioner Cloghan considered whether the showing sexually explicit photos and sexy texts was unwanted or unwelcome sexual behaviour and was a good reason for an airline to dismiss a flight crew member. The decision is relevant to workplaces in general.

The employment history and the incidents

21 January 2011 – The employee accepted a contract of employment as a member of the cabin crew. The employee acknowledged the airline’s Equal Employment Opportunity policy (EEO Policy), which required the employee to:

  • “be…responsible for treating all team members…customers…with dignity, courtesy and respect…” and
  • “not engage in any form of physical or verbal contract which a reasonable person would deem to be unwelcome, offensive, humiliating or intimidating” including
  • “any unwelcome or uninvited behaviour that is sexual in nature”

February 2011 – The employee was trained in and passed an exam upon the EEO Policy and the Employee Code of Conduct.

June 2014 – The employee was promoted to Cabin Crew Supervisor.

May 2014 – The employee and a member of the flight crew (Witness A) began a consensual sexual relationship on an overnight stopover in Bali following their first flight together. The relationship continued for about a year during which they sent sexually explicit photographs, sexy text messages and 2 short videos to each other on their mobile phones.

From May 2014, the employee was responsible for 13 incidents of a sexual nature, including:

  • The employee said in a loud voice “I hope you are clean” to Witness A in the presence of other flight crew members on the aerobridge, the day after they began their relationship. This comment was offensive and humiliating to Witness A.
  • The employee showed sexually explicit photos and sexy text messages received from Witness A to other flight crew members on several occasions - at the terminal, pre-flight and during a flight.
  • Comments made by the employee to Witness C, a female flight attendant, pre-flight, on various flights in Queensland, including that “he had slept with a lot of girls at the airline”; “this is her” showing her photos of Witness A completely naked on his iphone; and ‘rating’ the female passengers as they boarded the aircraft by whispering “She’s got great tits” and “She’ll be great in bed”. These comments made Witness C feel awkward and uncomfortable.
  • At the airline’s Christmas Party in 2015, the employee said to Witness F “I really want to have a threesome with you [Witness F] and [Witness D]. Oh, sorry, I mean a foursome with [Person A]”. Witness F was offended.
  • The employee telling Witness G, a junior female flight crew member during a flight “take off your shirt”, to which she replied “I am wearing a dress”, to which he responded “take off your dress”, to which she responded “no” and walked away. This conversation made Witness G uncomfortable.

29 October 2015 - Witness A made a formal complaint to the airline by completing an EEO complaint form. The airline began its investigation. Witnesses B, C, D, E and F came forward with witness statements at that time, and Witness G after wards.

18 December 2015 - the airline advised the employee that it was conducting an investigation into his conduct, and gave the employee the opportunity to respond. The airline particularised the complaints. The airline gave the employee every opportunity to respond – it sent 8 letters, the employee 9 responses. The employee was suspended on full pay.

4 February 2016 - the airline gave notice of termination of employment to the employee, as follows:

“As you are aware, [the airline] has conducted an investigation into allegations that you engaged in sexual harassment toward a number of cabin crew members.

The investigation has found that the following allegations were substantiated:

1. You showed sexually explicit images of a crew member in intimate positions to other fellow crew members while in flight and on an overnight. Some of these images…[deleted]. 
2. On multiple occasions you made inappropriate comments of a sexual nature to or within hearing of fellow cabin crew members. 
3. You made unwanted sexual advances to fellow cabin crew members…

In light of all the circumstances, a decision has been made to terminate your employment effective immediately without notice for serious misconduct.”

Note: The names of the airline, the employee and the witnesses are the subject of confidentiality orders made because of the personal and private nature of the evidence.

The decision

Commissioner Cloghan found the employee’s conduct proven in terms of the display of sexually explicit images of Witness A to work colleagues, making inappropriate comments of a sexual nature, and making unwanted sexual advances. He concluded that this “would have been unwelcome, disrespectful, offensive and contrary to the airline’s EEO Policy and Code of Conduct”. It was serious misconduct.

Therefore the airline had a valid reason to dismiss the employee pursuant to section 387(a) of the Fair Work Act 2009, and the airline had taken into account the other requirements of section 387.

The employee’s dismissal was not unfair (i.e. it was not harsh, unjust or unreasonable).

The Commissioner made these observations:

  • The employee denied the Witness allegations. The Commissioner observed that “Denial is a high risk approach to allegations” and “can be interpreted as evading or attempting to ignore, all the evidence which points in a different direction”. He found the denials to be “dishonest” behaviour, and concluded that the airline had reasonable grounds for summary dismissal.
  • The employee justified his behaviour by saying that he was a “victim” of the airline’s “workplace culture”, that he was a “patsy”, for a workplace culture where “nothing is really off limits, it’s pretty out there…” and that “almost every flight, the talk would turn into a discussion on sex”. The Commissioner rejected this justification and stated that the employee “is liable for his own conduct”.
  • The fact that the employee was a Cabin Crew Supervisor meant that he was held to a higher standard of behaviour: “I find that his conduct was in conflict with his role as a leader and the expectations of those he led, in particular, Witnesses A, C, D, F and G. The employee did not treat these employees with dignity, courtesy and respect, and engaged in conduct which was unwelcomed and uninvited.”
  • The Commissioner rejected the employee’s complaint that his treatment was inconsistent with the airline’s treatment of Witnesses A and D. Witness A had sent explicit photos to the employee in the course of their relationship (they were not unpleasant or unwanted and did not constitute sexual harassment). Witness D was disciplined and received a written warning for on-sending two of the explicit photos to work colleagues.

Conclusions

An employer must investigate thoroughly all complaints of sexual harassment in the workplace. Failure to investigate complaints might expose the employer to a complaint to the Australian Human Rights Commission under the Sex Discrimination Act 1984, and to allowing a toxic workplace culture to exist, which could lead to Occupational Health & Safety (OHS) exposure.

When dealing with complaints of sexual harassment, an employer must determine if the conduct is sufficiently serious so as to merit immediate dismissal. Otherwise, they might expose themselves to a suit by the employee for unfair dismissal and the payment of damages and reinstatement, if the Commission finds that the conduct merits only a written warning.

The determining factors in this case were:

  • The employer’s EEO Policy and Code of Conduct gave clear warning to the employee that unwelcome and uninvited behaviour of a sexual nature was an explicit breach of the EEO Policy, which the employee acknowledged.
  • The multiple incidents offset the fact that there was no unwanted touching or sending of photos or texts or posts on Facebook. It was enough to show sexually explicit images on the mobile phone (uninvited) to work colleagues and to make unwelcome comments of a sexual nature which made the recipients awkward and uncomfortable and caused humiliation.