Whether in the office or out of hours, workplace harassers can expect no legal leeway

WRITTEN BY John Wilson & Kieran Pender

There is no place, in the public service or otherwise, for workplace harassment. Following heightened public attention on sexual harassment in recent years, the law is catching up. Changes to the Fair Work Act last year, and a recent private sector case, underscore that there is little legal leeway for those who perpetrate work-related sexual harassment, whether in the office or out of hours.

In one sense, this has been the case for public servants for a long time. Employees in the Australian Public Service are held to higher standards than their private sector counterparts. The Code of Conduct in the Public Service Act 1999 provides that public servants must, “when acting in connection with APS employment … treat everyone with respect and courtesy, and without harassment”.

In a notable 1996 case, McManus v Scott-Charlton, the Federal Court confirmed that predecessor behavioural obligations on public servants could apply even in relation to out-of-hours conduct. Mr McManus had expressed unrequited romantic feelings for a colleague, beginning in the workplace and eventually out of the office.

Despite being told not to, Mr McManus continued to contact the colleague in an inappropriate manner constituting harassment. At one point, he even left a voicemail message on his colleague’s home answering machine: “[I know] I’m not supposed to call … I’ve always sort of fancied you so I thought I might as well tell you that, um, if you’re ever free I wouldn’t mind marrying you.”

After disciplinary proceedings were brought against him, Mr McManus challenged the workplace direction that he not contact the complainant, saying that the direction’s intrusion into out-of-hours conduct was unjustifiable. He was unsuccessful. After describing workplace sexual harassment as “intrinsically opprobrious” and “unlawful”, Justice Paul Finn held: “it is lawful for a [public sector] employer to give an employee a direction to prevent the repetition of privately engaged in sexual harassment of a co-employee” where the harassment had some nexus to the workplace.

Recent legislation and case law confirms for all employers and employees what was already clear in the public sector: work-related sexual harassment is a serious matter that can lead to serious consequences for perpetrators, including dismissal.

Accordingly, since at least the late 1990s (and arguably since the Sex Discrimination Act was enacted in the 1984), it has been clear in law that sexual harassment within the public service – whether in the workplace or out of hours – is subject to oversight and sanction. Recent developments have further narrowed any leeway in law for perpetrators of workplace sexual harassment to avoid appropriate sanction.

Last September, the Respect at Work amendment bill – the implementation of recommendations from the Australian Human Rights Commission – was enacted. Among other things, it amended the Fair Work Act to clarify that work-related sexual harassment can constitute a valid reason for dismissal. Similarly, the Fair Work Regulations have been updated to include sexual harassment within the definition of serious misconduct (which can justify summary dismissal). While on one view this simply codifies what was already accepted in case law, it provides extra certainty for employers.

Additional clarity comes from a Fair Work Commission decision last month, in the case of Keron v Westpac, which underscored that sexual harassment occurring outside the physical workplace can still justify dismissal.

Mr Keron had worked at Westpac for more than three decades. Last year, following an off-site training for staff, Westpac hosted an after-hours social event with a company-paid bar tab. Late that evening, after the event had ended, but at the same bar, an intoxicated Mr Keron was alleged to have touched a female colleague on the bottom. He then subsequently engaged in an aggressive verbal altercation with another colleague.

Mr Keron was terminated from his employment following an internal investigation, and charged with indecent assault. He commenced unfair dismissal proceedings, on the basis that “since any conduct that occurred did so late at night in his own personal time it had no connection with his work … and therefore cannot form lawful grounds for dismissing him”.

He was unsuccessful. Mr Keron had submitted that the physical contact was not unwelcome, and that the target had touched him on the back immediately prior to him touching her in a friendly social interaction. Deputy President Melanie Binet rejected this submission:

“The 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 … 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.”

Binet also rejected submissions that the conduct occurred out of hours and therefore could not justify dismissal. She held: “They were only at this location in the company of each other as a consequence of their attendance at the [training and social event] in the course of their employment.”

In sum, then, recent legislation and case law confirms for all employers and employees what was already clear in the public sector: work-related sexual harassment is a serious matter that can lead to serious consequences for perpetrators, including dismissal. Given the heightened public interest in these issues, we would anticipate that APS agencies will continue to take active steps to prevent and address workplace harassment in the public service in the year ahead.

Of course, there are some shades of grey. The two cases discussed above are relatively black and white, but there are many examples of misconduct on the less-severe end of the spectrum. Proportionality will always be important, and no doubt there will be further litigation over when sexual harassment that is not as serious as that of Mr Keron’s or Mr McManus’s will still justify dismissal, or should instead lead to lesser sanctions.

In the APS, questions linger over the reach of the Code of Conduct. The prohibition on harassment is in relation to conduct “in connection with APS employment”. What about conduct that is not in connection with APS employment? Here some difficulty arises. Another provision in the Code requires that public servants “at all times” uphold APS values and the APS’s reputation.

What happens, then, if a public servant sexually harasses someone at the weekend, at a night club? Does “at all times” really mean “at all times”? What happens if the complainant, coincidentally, is also a public servant? Does that bring the conduct into “connection with APS employment”, even if the perpetrator and complainant worked at different agencies and the fact of co-employment was simply coincidental? These outer boundaries of the Code of Conduct remain uncertain, and these are no mere hypotheticals (we have been involved in cases raising similar issues).

Although some uncertainty on the outer edge of the connection with employment might linger, the overarching theme is straightforward. There is no place for sexual harassment in the workplace – on that, the law, from the 1990s and today, is clear.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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