Workplace policies sexual harassment investigation – A recent case before the Fair Work Commission highlighted the importance of having well written workplace polices in place.

In Jay Higgins v Coles Supermarkets Australia Pty Ltd,  Mr Higgins, a baker employed by Coles was dismissed for sending his manager sexually explicit and pornographic images.  Mr Higgins had been requested to provide a medical certificate for his injured thumb. Instead, he sent his manager a picture of a penis, followed by a picture of a thumb in a bandage next to a penis and an additional photo of a penis wrapped in a bike chain.

Commission Simpson held that the manager’s response to the first text message demonstrated he found the message funny, which led Higgins to believe he accepted the joke. After receiving the manager’s response to the second text message indicating he no longer accepted the joke, it was not disputed that Higgins ceased to send any further images.

Commissioner Simpson was not satisfied that Higgins’ conduct fell within the definition of sexual harassment in Coles’ Equal Opportunity Policy, however he found his conduct was a clear breach of Coles’ code of conduct, which required employees to treat others with dignity, courtesy and respect.

Commissioner Simpson also took a dim view of the baker’s refusal to take any responsibility for his conduct when he was giving evidence before the FWC, which resulted in Commissioner Simpson accepting Coles’ evidence that it could not hold confidence in the baker’s ability to comply with Coles’ core values under the Code.

In finding in favour of Coles, Commissioner Simpson determined that there was a valid reason for Mr Higgins  dismissal and rejected Mr Higgins argument that he had been denied procedural fairness either because he had not been made aware of the allegations before the meeting or had not be provided with an adequate opportunity to respond.

Workplace policies sexual harassment investigation – Lessons for employers

  • Your workplace polices and Code of Conduct are the law within your business, as a workplace investigator along with details of a complaint or incident they are the first thing I ask to see at the commencement of an investigation.
  • Generally any form of workplace sexual harassment, bullying and harassment or discrimination involves the alleged perpetrator showing a lack of respect for the victim.  Many polices include specific definitions but it is importance that they require employees to treat others with dignity, courtesy and respect. This makes my job much easily as the allegation/s I write are framed in reference to your policies. See more information about writing allegations
  • When investigating matters involving misconduct, showing a breach of a policy or Code of Conduct is far more straight forward than showing a breach of the Fair Work Act or sexual harassment laws.
  • When investigating matters such as sexual harassment employers are advised not to rely on cases such as this where some procedural flaws were forgiven, it is important to ensure that procedural fairness is important and should be adhered to.
  • If in doubt call in an expert – AWPTI can assist with investigations – More details and Investigation Training – More details

Workplace policies sexual harassment investigation – Other articles that may be of interest

Workplace Investigations – getting it right the first time
Procedural Fairness in workplace investigations

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria.
Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations



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