Workplace Investigation Terminations Unfair dismissal

The recent decision of Jay Higgins Coles Supermarkets Australia Pty Ltd T/A Coles at the Fair Work Commission highlighted the importance for employers about being clear about the reason for the dismissal.

In this matter, Coles submitted that the explicit text messages sent by Mr Higgins resulted in a serious breach of the Code and Equal Opportunity Policy (EO Policy). Specifically, that by sending the explicit text messages to his supervisor Mr Lacey, Mr Higgins engaged in behaviour that was considered to be harassment due to its offensive and sexual nature. Coles submitted this resulted in a serious breach of his duty to treat everyone with dignity, courtesy and respect.

Mr Higgins submitted that when taking into account the context in which the text messages were sent, it could not be satisfied that he engaged in conduct amounting to sexual harassment towards Mr Lacey. Mr Higgins relied on the section of the Equal Opportunity Policy that states as follows:

“Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment, as long as the interaction is consensual, welcome or reciprocated.”

Mr Higgins submitted that he and Mr Lacey had a personal friendship outside of work, and that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours. Mr Higgins submitted he had sent messages of a similar nature to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins submitted that the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. Mr Higgins also submitted that Mr Lacey’s response to the first text message on 5 September encouraged him to send further text messages.

When the manager responded negatively to the image of a penis in a bike chain, Mr Higgins did not sent any further images.

As a result, the commissioner found the conduct did not fall within Coles’ definition of sexual harassment, which excluded behaviour based on friendship as long as it was “consensual, welcome or reciprocated”.

But he found sending such explicit images was “clearly conduct inconsistent with the requirement of the code to treat others with dignity, courtesy and respect”.

Together with Mr Higgins’ lack of contrition and aggressive comments to his supervisor after he was warned over the images, he concluded Coles had a valid reason for dismissal and found the dismissal was not unfair.

Commissioner Simpson held that “The fact that Mr Higgins refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles’ submission that it cannot reasonably hold confidence in Mr Higgins’ ability to comply with its core values. I am satisfied Mr Higgin’s misconduct was serious.”

In this case it was found that Coles had a valid reason for the dismissal other than the initially alleged sexual harassment. Had Cole gone alone with the sexual harassment allegation the outcome may have been different.

Lesson for employers

  • Be careful when investigating matters such as sexual harassment that the behaviour is consistent with the definition of sexual harassment.
  • Be careful that organisational policies reflect the accepted or legislated definition of misconduct, bullying, harassment and sexual harassment.
  • If you are unsure call in an expert –
  • Ensure that all employees undertake training in what is and what is not misconduct, bullying, harassment and sexual harassment –

Workplace Investigation Terminations Unfair dismissal

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



Sexual Harassment is your business covered?

With all the publicity around sexual harassment in Hollywood, in my opinion it is time for all businesses and employers to conduct an audit on their sexual harassment protections, processes and procedures;

Do you have;

  • A policy that makes it clear that your business will not tolerate sexual harassment in the workplace and will take all reasonable steps to minimise the likelihood of it occurring?
  • Training to support your policy so that all you employees know what the behavioural expectations of the organisation are?
  • Training that ensures your employees understand what constitutes sexual harassment?
  • A trusted process by which employees who feel that they have been sexual harassment can report the matter?
  • A procedure by which reports of sexual harassment are investigated?
  • The ability to outsource sexual harassment complaints for investigation by professional and expert workplace investigators if required.
  • Training for your managers and HR staff to ensure that they are able to identify behaviours in the workplace that could lead to complaints and take pro-active steps to deal with such matters.
  • Training for your managers and HR staff to ensure that they can investigate matters of sexual harassment in a timely and professional manner?

Polices, processes and training alone will not stop sexual harassment. As an employer it is important to act quickly if complaints are made and to deal with potential misconduct in a timely and professional manner in order to minimise any fallout.

Sexual harassment is highly detrimental to the victim and can cause long lasting issues including anxiety, depression and a type of PTSD.

Not having processes in place and/or doing nothing about complaints can result in costly litigation against employers. Examples of court cases and compensation payouts can be found –

If you wish to engage a professional investigator AWPTI can assist you,

If you do not have training programs in place that clearly outline the behavioural expectation of your organisations, please contact us we have programs that can be tailored to your business and your budget –

If you are not sure what type of investigator to engage, this article may assist –

Sexual Harassment is your business covered? – 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


Workplace sexual harassment what can you do?

When faced with workplace sexual harassment a question many people ask is “what can I do?” especially when the harassment is from a senior member of staff or the business owner.

What happens when you make a complaint and nothing is done about it?
What about situations where the workplace culture is toxic as a result of sexual harassment?

Where do you go, who do you turn to?
Your first port of call if you are in NSW could be the Anti Discrimination board of NSW.  The Anti-Discrimination Board of NSW promotes anti-discrimination, equal opportunity principles and policies throughout NSW. It administers the anti-discrimination laws, and handles complaints under the Anti-Discrimination Act 1977 (NSW). It is part of the NSW Department of Justice. Read more

What can the Anti-Discrimination Board do?

The ADB can investigate complaints about the types of discrimination covered by the NSW Anti-Discrimination Act. It can help you and the other side find a way of solving the problem.

The ADB does not take sides, decide whether discrimination happened or not, or provide legal advice. If the Board can’t help solve the problem, you might be able to take your complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal, which can make a decision like a court.

If the matter proceeds to the Equal Opportunity Division of the Administrative Decisions Tribunal you may be entitled to compensation if the tribunal finds in your favour for example in the cases of;
Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty where the victim was awarded compensation of  $30,000.00
Borg v Commissioner, Department of Corrective Services & Anor where the victim was awarded compensation of  $47,500.00 for sexual harassment, discrimination and victimisation

The matter may also proceed to the Federal Court as it did in the matter of Richardson v Oracle Corporation Australia Pty Ltd where Ms Richardson was awarded $130,000.00 in compensation

Sexual harassment may also lead to litigation as a result of an action in negligence for personal injuries as it did in the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC where Ms Mathews was awarded 1.3 millions dollars in compensation.

For more examples of workplace sexual harassment case – read more

Lessons for employers

  • Don’t engage in workplace sexual harassment, it can end badly for all parties and can be very expensive for the organisation
  • Don’t ignore workplace sexual harassment, if you know or suspect it is happening.
  • Take action and investigate if a complaint or report is made

If you are not sure what to do – call in an expert.

AWPTI can assist you with investigations services into sexual harassment and a wide range of other complaint including workplace bullying, and all forms of misconduct;

Other Anti Discrimination boards and commissions:
Victoria –
Western Australia –
Tasmania –