​Self-styled office Romeo sacked for sexual harassment

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​Self-styled office Romeo sacked for sexual harassment

A 45-year-old surveyor who sent sexually explicit images and texts to young female co-workers, including a photo of his erect penis, was validly dismissed, a tribunal has ruled.

A 45-year-old surveyor who sent sexually explicit images and texts to young female colleagues, including a photo of his erect penis, was validly dismissed, a tribunal has ruled.

Deputy president Melanie Binet, in the Fair Work Commission, said that ‘in this day and age young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed toward them in their workplace.’

Background 


Mr R, who had been employed by the City of Rockingham for nearly 28 years in building surveyor roles, was dismissed following an investigation into allegations of inappropriate conduct. 

During the course of the hearing, the City sought confidentiality orders in relation to the identity of certain witnesses and the content of various exhibits. This was refused, with the deputy president saying ‘Keeping the identity of these witnesses secret in the absence of some established threat or risk of harm to them runs contrary to the principles of open justice because it may promote the making of unsubstantiated, frivolous or vexatious allegations.’

The deputy president said that establishing the basis upon which Mr R contested his dismissal was unfair was a fraught process. He failed to meet multiple extensions to filing dates. Although directed to do so, Mr R did not file a witness statement, initially filing only what he described as an 'outline of submissions'. 

The commission also noted that between 29 July 2016 and 2 September 2016, Mr R was on personal leave to receive mental health treatment after he was found in a stairwell in a confused and disoriented state by colleagues. ‘Mental illness’ was one aspect of Mr R’s defence rejected by the commission.

Allegations against applicant


The commission outlined allegations related to Mr R’s interactions with the following City employees: Ms M, Ms S, Ms L, Ms H and City staff who attended a staff development workshop on 12 October 2017. 

It was further alleged that Mr R had taken cash from a ratepayer and had failed to account for those monies. The commission did not consider that this alleged failing was sufficient basis for his dismissal. In addition, the evidence was not clear.

On the sexual harassment allegations, the commission said that leaving aside the evidence of the witnesses, the exhibits tendered by Mr R revealed a pattern of Mr R sending overfamiliar, sexually loaded and sexually explicit texts and images to young female co-workers, often late at night and in the early hours of the morning.

One example of this style of communication was when Mr R asked Ms M in one text message if she was attempting ‘the just been f*cked look’ after she had a car accident. He also asked Ms S if she was getting dressed up or going for the ‘just f*cked’ look.

The allegations involving Ms H included sending her photos of: Mr R in a bedroom reflected in a mirror in his underwear and a white shirt; Mr R in a bedroom reflected in a mirror wearing only underwear; and Mr R's erect penis.

After sending Ms H a number of inappropriate and unsolicited photographs he repeatedly requested that she send him an inappropriate photograph of herself. The commission noted that Ms H felt pressured and harassed into providing the photograph given Mr R’s seniority.

Key pillar of defence


The key pillar of Mr R’s defence was not that he did not do what he was alleged to have done, but rather that the women should have told him to stop. 

Some of the women gave evidence that they did in fact do so and it made no difference.

The commission continued: ‘Others clearly tried to curtail conversations that Mr R was trying to lead in an inappropriate direction. Others admittedly participated. All say that to the extent that they did respond, they felt they had little choice given Mr R’s seniority and his behaviour in the workplace.’ 

Believed conduct to be welcome


The commission summarised Mr R’s attitude to the situation:

‘Despite Mr R’s assertion that he genuinely believed his conduct was at all times welcome and reciprocated, the text message histories he tendered reveals that he was aware that there are boundaries of acceptable behaviour and that he had overstepped those boundaries. 

'More relevantly it confirms that as soon as they became aware of his conduct, Mr R was informed by the City that his behaviour was inappropriate and that it must stop. Nevertheless, Mr R continued to engage with much younger, more junior staff in an inappropriate manner.’

Valid reason


The commission found that there was a valid reason for Mr R’s dismissal. It noted he was given multiple opportunities to respond to the reason for his dismissal but chose not to take advantage of those opportunities.

Mr R’s lengthy period of service was a factor that weighed heavily in his favour, but his behaviour was sufficiently serious to warrant dismissal.

Behaviour likely to continue


The deputy president concluded that ‘to this day Mr R continues to assert that his conduct ought to be excused because it was consensual... His position appears to be that he is entitled to say and do what he pleases unless his female colleagues tell him emphatically in writing to stop... There is nothing to suggest that Mr R would not continue the same pattern of behaviour leading to further young women being subjected to his inappropriate overtures if he were to return to the workplace. This risk outweighs the weight that might attach to his length of service.’

Mental illness


Mr R asserted that the behaviour for which he was dismissed was a consequence of mental illness triggered by his workload at the City and his treatment at the hands of other staff. This defence/plea in mitigation was rejected by the commission:

‘Mr R did not call any expert medical witnesses to give evidence in relation to the nature of his mental illness or its cause. The very limited documented medical evidence which he filed was untested... More relevantly, it does not establish a causal link between any mental illness Mr R suffered and his misconduct, nor does it establish a causal link between his employment and his mental illness.’

Reality check


The deputy president commented: ‘With all due respect to Mr R, who is 45 years old and in a long term relationship of more than 12 years, it is difficult to comprehend that Mr R could have reasonably believed that all of these much younger women seriously welcomed his advances.’ 

The bottom line: In matters involving sexual harassment, courts and tribunals are not open to a defence that is built on the proposition a victim should have told the perpetrator to stop.

Read the judgment


R v City of Rockingham [2018] FWC 3148 (13 June 2018)
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