Sexual harassment out of office behaviour

Sexual harassment out of office behaviour – A reminder to workplaces that the defintion of the workplace can be extended to cover out of office activities.

Networking over drinks, office Christmas parties, social events during conferences  may be a part of the way tmany organisation do business, however. the decision at the Fair Work Commission in the case of John Keron v Westpac Banking Corporation should be considered as a reminder that what happens out of the office doesn’t stay out of the office and can have consequences in the workplace and to the organisation.

In this case the appicant Mr Keron attended an official networking session which followed a training event,  his employer Westpac arranged for free drinks at the networking for two hours. Mr Keron and several other employees stayed the organised events, purchasing their own drinks.

Mr Keron became involved in two incidents that became the subject of an internal investigation. The first incident involved inappropriate touching of a female colleague  by touching her buttocks and waist. The investigation reviewed CCTV footage of the incident confirming the complaint.  The CCTV footage also showed that the female employee (the complainant) had earlier rubbed Mr Keron’s back and also inclined toward him after the inappropriate contact.

The second incident occurred when Mr Keron was denied entry into the casino by security staff following another female colleague requesting that Mr Keron not be let that resulting in Mr Keron verbally abused his colleague due to her interaction with the security staff; it was alleged that Mr Kenon used expletives and offensive language during this incident.

Following the internal investigation, Mr Keron was dismissed for serious misconduct despite being a senior executive with 35 years of unblemished service by having breached a number of Westpac’s workplace policies.

The FWC found;

The Fair Work Commission found that the first incident had sufficient connection to the applicant’s employment to be covered by Westpac’s policies, but that the second incident did not. It also found that the dismissal was not harsh, unjust or unreasonable, noting that the bar for consent in relation to physical and sexual interactions had been raised, and that was even more the case in work situations.

Importantly, in relation to the first incident, the commission noted that, “While Witness A’s conduct of itself may well have constituted a breach of the Westpac policies it does not of itself provide a defence for Mr Keron’s behaviour.”

In the judgement the Commisioner mader the following comments,

[198] … [T]he bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the broader community. An even higher bar has been set for interactions occurring in work related environments. The media coverage and social discourse in relation to these issues has been extensive, placing those in Australian workplaces on notice that their behaviour will attract greater scrutiny and face higher standards than in the past. While Witness A’s conduct of itself may well have constituted a breach of the Westpac policies it does not of itself provide a defence for Mr Keron’s behaviour.

[199] Mr Keron was aware that Witness A was a junior work colleague and a married mother. In these circumstances he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature. Even more so when the conduct was occurring at a time when both parties were known to each other to be intoxicated and their judgement potentially impaired. The fact that Witness A has patted Mr Keron on the shoulder or back does not constitute an invitation for him to touch her in a sexualised manner or intimate location. Mr Keron himself acknowledged in cross examination that uninvited touching of a woman on her buttocks had the very real potential to cause significant distress to the woman. It is clear by her actions in subsequently reporting the incident to her colleagues, her employer and the police that the conduct was unwanted and unwelcome and made Witness A feel humiliated and offended.

Link to case  

Sexual harassment out of office behaviour – The question of serious misconduct

At 1.07 in the Fair Work Regulations 2009, Sexual harassment is listed As being serious misconduct at (2) (c) and (4) (c).

The Fair Work Act 2009 – SECT 527D states that;

Prohibiting sexual harassment in connection with work

 (1)  A person (the first person ) must not sexually harass another person (the second person ) who is:

 (a)  a worker in a business or undertaking; or

 (b)  seeking to become a worker in a particular business or undertaking; or

 (c)  a person conducting a business or undertaking;

The definition applied to sexually harass under the Fair Work Act is

“sexually harass”has the meaning given by section   28A of the Sex Discrimination Act 1984 .

Sexual harassment out of office behaviour – Meaning of sexual harassment at law

 (1)  For the purposes of this Act, a person sexually harasses another person (the person harassed ) if:

(a)  the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

 (b)  engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

(1A)  For the purposes of subsection   (1), the circumstances to be taken into account include, but are not limited to, the following:

(a)  the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;

(b)  the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;

(c)  any disability of the person harassed; (d)  any other relevant circumstance.

(2)  In this section:

“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Sexual harassment out of office behaviour – Advice for employers

Ensure that your organisation has;

1. Policies in place that clearly outline the behavioural expectations of the organisation, including the expectations during out of office events
2. Training that supports the policy and clearly outlines;

• • The definition and examples of sexual harassment
  • That sexual harassment is unlawful
  • What to do if a person is subjected to or witnesses sexual harassment in the workplace

In addition it is important to have;

1. A trusted reporting mechanism that allows employees to report sexual harassment with confidence and confidentiality
2. A timely and professional investigation mechanism to deal with complaints
3. HR staff trained in best practise investigation process is or a fully qualified and experienced external investigator on speed dial

Sexual harassment out of office behaviour – How can AWPTI help

AWPTI can provide you with

• Sexual harassment training to ensure you protect your employees and satisfy your duty of care including the positive duty to take all reasonable steps to eliminate sexual harassment in the workplace – details here
• Professional and comprehansive investigation services – https://awpti.com.au/workplace-investigations/
• The best investigation traniing  available on the market today – learn more

Please contact me via enquiries@awpti.com.au or our contact page if you would like to organise a course for your organisation or you would like to join an upcoming open course.

If you are a HR consultant conducting workplace investigations this course is essentially important for your business or career development

Please feel free to see what past participants have said about the courses – details here