'Great d**k pic' ... but you're fired

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'Great d**k pic' ... but you're fired

A Coles baker who sent pornographic images to his line manager was justifiably sacked, the Fair Work Commission has ruled.

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A Coles baker who sent a 'great dick pic' to his line manager was justifiably sacked, the Fair Work Commission has ruled.

The man had argued that his behaviour didn't breach company policy because the images were sent on his personal mobile phone outside of work hours.

Background


Jay Higgins was employed as a baker at Coles Toowong in April 2014.

On 5 September, 2016 his line manager requested, via text message, that he provide a medical certificate for his thumb injury.

Mr Higgins instead sent a picture of a penis, to which his manager, Danniel Lacey, responded "great dick pic". 

Mr Higgins then sent photos of a thumb in a bandage next to a penis, and a pic of penis wrapped in a bike chain.   

Mr Lacey responded "no more inappropriate texts Jay", and then notifed HR he had received explicit photos from Mr Higgins on his personal mobile phone.

On September 6 Mr Higgins was suspended on full pay while an investigation was undertaken regarding the allegations. 

Following a disciplinary meeting on September 12, Mr Higgins was summarily dismissed due to serious misconduct.

Submissions

 
Mr Higgins submitted that the termination of his employment from Coles was harsh, unjust and unreasonable.

He said there was no valid reason for his dismissal, he was not properly notified of the reasons for his dismissal, nor was he given an adequate opportunity to respond. 
 
Mr Higgins told the Commission that he considered Mr Lacey to be a personal friend and that they often exchanged personal text messages.

He also claimed the Toowong Coles bakery team had a culture in which it was normal for team members to send or show explicit material to each other, and that Mr Lacey had welcomed receiving such material on more than one occasion. 
 
Mr Higgins said he had not received warnings regarding his behaviour, nor did he receive any counselling. He also submitted he was denied procedural fairness during the disciplinary meeting, as Coles did not properly accommodate for the fact that he had learning difficulties. 

Coles submitted that, when viewed in totality, Mr Higgins’ conduct – (namely the explicit images he sent), his aggressive response to Mr Lacey when he was told to stop sending explicit images, his attempt to mislead Coles in its investigation into his misconduct and his failure to recognise the seriousness of his actions when responding to the allegations – amounted to wilful or deliberate behaviour inconsistent with the continuation of the contract of employment. It claimed his actions amounted to serious misconduct. 

The supermarket giant said sending explicit text messages was a serious breach of its Code and Equal Opportunity Policy. It said Mr Higgins had 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.

Was it sexual harassment?


Mr Higgins argued that his conduct did not amount to sexual harassment towards Mr Lacey. He relied on a 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 said he and Mr Lacey had a personal friendship outside of work, and were connected via Facebook and online gaming platforms. He pointed out that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours.

He told the Commission he had sent similar messages to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins claimed the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. He said Mr Lacey’s response to the first text message – 'great dick pic' – had encouraged him to send further text messages.

Mr Lacey, on the other hand, strongly denied having a personal friendship with Mr Higgins. He claimed any interaction always occurred within a professional context.

He said he had been shocked by the images and was unsure how to respond to the message. He said the 'great dick pic' comment was an attempt to appease Mr Higgins and end the conversation without conflict.

However, Commissioner Simpson found Mr Lacey was not a credible witness and "has likely given a version of events that paints himself in the best light.

​I find that that Mr Lacey’s response to the first text message demonstrated he found the message funny, and led Mr Higgins to believe he accepted the joke. After receiving Mr Lacey’s response to the second text message indicating he no longer accepted the joke, it was not disputed that Mr Higgins ceased to send any further images

"It is relevant to this case that Mr Lacey was not offended by the messages, as it indicates the interaction between himself and Mr Lacey on 5 September, or at least the first message, was “consensual, welcome or reciprocated”, he said.

"I am not satisfied that Mr Higgins’ conduct on 5 September would fall within the definition of sexual harassment in the Equal Opportunity Policy. 
 
"However, ... I am of the view that sending images of such an explicit nature... is clearly conduct inconsistent with the requirement of the Code to treat others with dignity, courtesy and respect."

Culture 


The Commissioner found there was not sufficient evidence to determine that a culture existed in the Toowong Coles bakery team whereby it was the ‘norm’ for team members to send or show explicit or sexually offensive material to each other. 

Was response aggressive?

 
Coles submitted that Mr Higgins’ response to Mr Lacey, after being warned about the images, was aggressive and inappropriate.

His message included the words: “get your s**t together” and “I see this as my first warning...I want to see on Friday a roster so I don’t have to communicate with you in any other way...”. 
 
Coles said this aggressive and inappropriate tone was consistent with (and symptomatic of) Mr Higgins’ broader disrespectful conduct toward Mr Lacey.
 
Mr Higgins submitted that these comments were made in frustration.
 
Commissioner Simpson agreed Coles’ submission that the response was disrespectful.

"Regardless of any personal friendship that may have existed between Mr Higgins and Mr Lacey, the discussion was work-related and the way in which Mr Higgins’ responded to his manager was inappropriate."

Was employer misled during investigation?


Commissioner Simpson rejected Coles' argument that Mr Higgins had fabricated the existence of a personal relationship with Mr Lacey.

"Coles was wrong to simply accept Mr Lacey's word as the truth, without investigating Mr Higgins' alternative version of events.

"I therefore do no accept... that Mr Higgins deliberately misled Coles in the investigation...".

Lack of contrition


A factor that contributed to Coles' decision to dismiss Mr Higgins was his refusal to accept responsibility for his actions.

He maintained that because the messages were sent on his private number his conduct did not amount to a breach of the Code.

However, Commissioner Simpson rejected this argument, finding "Mr Higgins’ behaviour throughout the hearing is consistent with Coles’ submission that Mr Higgins’ was argumentative throughout the investigation and that he failed to accept responsibility for his actions when responding to the allegations.

"While there are mitigating factors to Mr Higgins’ misconduct, it was of such a nature that Mr Higgins ought to have accepted at least some responsibility for his actions. 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."

The Commission found the totality of Mr Higgins' misconduct constituted a valid reason for dismissal.

It also found Mr Higgins was afforded procedural fairness and was given adequate opportunity to respond to the allegations.

Commissioner Simpson concluded the dismissal was not harsh, unjust or unreasonable.

The application was dismissed.

Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 6137 (21 November 2017)
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