Offensive d*ck pic not 'accidentally' sent

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Offensive d*ck pic not 'accidentally' sent

A train guard who sent a photo of his erect pen*s to a colleague via Snapchat had 'overstepped the boundaries of acceptable conduct' and was justifiably dismissed, the Fair Work Commission has ruled.

A train guard who sent a photo of his erect pen*s to a colleague via Snapchat "overstepped the boundaries of acceptable conduct" and was justifiably dismissed, the Fair Work Commission has ruled.

The tribunal said no amount of regret or apology could lessen the seriousness of the incident.

Offensive image sent


Rodney Fussell began work with Sydney Trains in September 2010.

On a Sunday night in February 2018 he initiated contacted with a female colleague via Snapchat asking how she was.

Mr Fussell messaged that "when I am drunk I send naughty images".

The female guard responded with "do not send me a picture of your dick", to which the guard replied "Why? Don't girls like dick picks because guys like to get clit picks".

Mr Fussell then messaged that he had tried Viagra and was home alone. This was followed by an image of his erect pen*s with the message "Was home alone... But before I wasn't...Fwb".

At the time the female guard was watching television with her husband and children. She told the commission that she understood the acronym Fwb to mean 'friends with benefits'.

Immediately after receiving the image she received a message from Mr Fussell saying "Shit don't look. I'm so sorry."

The female guard was so upset she sent a message to several Sydney Trains employees expressing her disgust at her colleague's conduct. Her message was shown to a manager who referred the matter to the Workplace Conduct and Investigation Unit.

Following the investigation, and a review process, the guard was dismissed for serious misconduct.

Sydney Trains said the guard had breached its
  • code of conduct
  • transport prevention and management of bullying and harassment policy, and
  • use of social media policy.

Pic sent 'accidentally'


The train guard claimed he had 'accidentally' sent the offensive photo. He said his inexperience with the Snapchat app meant he inadvertently selected and forwarded the wrong image. He had intended to send an image of a tattoo on his arm which covered over a picture of his ex-wife.

The guard said at the time of the incident he was stressed due to the end of his 17-year marriage and recent back surgery. The commission heard the female guard had offered her support during this time, including sending Facebook messages telling Mr Fussell he was "welcome to drop by" for coffee, dinner or a cuddle.  

Mr Fussell's new partner also explained the context in which the offending photo came into existence. She said the couple had a "highly visual relationship" and often shared images of a personal and private nature.

Mr Fussell argued that his dismissal was "disproportionate to the sending of a single explicit image to a person outside of the context of the workplace on an accidental basis, from a private mobile phone".

He also claimed the dismissal process was flawed, saying "the ability to lodge a number of appeals is an unjust process where it constitutes no more than a sham process designed to create the appearance of procedural fairness."

Serious misconduct


Sydney Trains argued that the guard had breached its workplace policies and that constituted serious misconduct.

The commission heard its 'Use of social media policy' stipulated that staff were 'personally responsible for the content they publish in a personal capacity on any social media platform'.

Additionally, the employer's code of conduct defined examples of harassment as 'displaying or circulating sexual material, physically or electronically'.

Sydney Trains said the photo, while sent outside work hours and not involving a work device, still had a connection with the workplace. Both parties were employees of Sydney Trains and were friends on Snapchat only because they worked together. The messages sent to other employees about the incident were seen by a manager who then reported the matter to the investigation unit.

Decision


Deputy president Bull was satisfied the image was deliberately sent.

He said the guard's attempts to suggest otherwise "strain credulity beyond any reasonableness".

While the sending of the image may have been a "one-off lapse of judgment", the image was at the "extreme outer limit of offensiveness".

The guard had "overstepped the boundaries of acceptable conduct with a fellow employee to such an extent that no amount of regret or apology can lessen the seriousness of the incident."

The commission found Mr Fussell's conduct had been repudiatory and was in breach of Sydney Trains' employment policies. It therefore constituted a valid reason for termination.

Deputy president Bull also addressed Mr Fussell's concerns that the process had been flawed, finding there was "some substance" to his procedural fairness claims.

"Unfortunately and surprisingly, Sydney Trains did not call, in support of its decision to dismiss Mr Fussell, the author of the investigation report of the apparent decision... who signed the correspondence to Mr Fussell advising of his dismissal," he said.

The employer had also not demonstrated how some of its processes were undertaken.

Nonetheless, "to the extent that there were procedural flaws in the process adopted by Sydney Trains this should not be elevated above the substance of the outcome..."

The application was dismissed.

Read the judgment


Rodney Fussell v Transport for NSW T/A Transport for NSw (U2018/9098) [2019] FWC 1182


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