Legal View – Sexual Harassment Part Two

#IT’SNOTON!

SEXUAL HARASSMENT IN THE HOSPITALITY INDUSTRY (PART TWO)

In the last edition, the early awareness of sexual harassment in the workplace was explored, particularly in light of the #MeToo movement. The Human Rights Commission has launched a year-long enquiry into sexual harassment, and now it appears the Fair Work Commission is taking a much harder stance on sexual harassment.

By Walter MacCallum, a director at Aitken Lawyers in Sydney and a regular contributor

In recent cases this year, what can be seen from these decisions is that firstly, sexual harassment can occur outside of ordinary working hours and secondly, the victim’s failure to tell the perpetrator to stop, or indicate that the sexual conduct was unwarranted or unwanted, will not be a defence.

The case of Colin Reguero-Puente v City of Rockingham1, sexual harassment allegations were played out in the context of an unfair dismissal claim brought by Mr Reguero-Puente after being summarily dismissed by his employer, a local council. Mr Reguero-Puente was a manager employed for over 30 years, and he was summarily dismissed after being suspended and investigated for sending numerous salacious text messages to younger female co-workers. Fair Work Commission observed that: “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.”

What is also relevant here is that the employer had a clear policy in place to deal with sexual harassment and invoked it not only appropriately, but with the outcome that when the unfair dismissal claim was brought against it, Mr Reguero-Puente was unsuccessful.

Another recent instance where an employer’s sexual harassment policy was under the spotlight, was in the case of Oliver Bridgewater v Healthscope Operations Pty Ltd t/as Prince of Wales Private Hospital2. Oliver Bridgewater was summarily dismissed following an inappropriate Instagram post sent to a young nurse at the hospital. Although Mr Bridgewater’s legal team argued that his dismissal was harsh and that the Instagram post was at the lower end of the spectrum, the Commission took a hard line approach and found that it was offensive and an unwelcome advance of a sexual nature, and was in clear contradiction of the hospital’s detailed policy on sexual harassment. Mr Bridgewater, like other employees of the hospital, had received training in respect of the policy and couldn’t plead ignorance.

In this day and age where sharing images on social media is a routine activity for many, one needs to be very careful about sending any information of a sexual nature. In Colwell v Sydney Container Terminals Pty Ltd3 , a worker sent a pornographic video to 19 co-workers well after the end of the working day. His employer found out and sacked him notwithstanding that the employee thought it was ‘a bit of a joke’ and didn’t mean to offend anyone. In his unfair dismissal claim, it was argued before the Commission that because the video was sent outside work hours, it wasn’t for the employer to regulate that behaviour. However, the Commission found that his sharing of the pornographic video with coworkers was done in circumstances where those co-workers were friends really only by dint of their employment, and consequently there was a sufficient connection between the employment and the sharing of the pornographic video albeit outside usual working hours. The Commission found against the employee even though none of the 19 co-workers receiving the video made a complaint.

So, the law is clearly responding swiftly to changing public perceptions and concerns regarding sexual harassment. Many are saying, quite rightly, that it is about time and that Harvey Weinstein’s alleged conduct, may ultimately have a beneficial effect on sexual harassment in the workplace.

Most recently, Bloomberg published an article on what is now being called the ‘Weinstein clause’ where provisions are being included in significant transactions relating to mergers of businesses, including the hiring of high-level executives. The risks associated for purchasers of business and employers in light of the #MeToo campaign are not just the exposure as an employer, but also financially; hard-headed financial considerations are significantly driving Weinstein clauses. The big end of town now recognises that economic loss can result when a company hires people with the propensity or prior history of sexual misconduct or harassment. It is conceivable that at least at the high level (and probably everywhere soon), standard clauses in employment contracts containing warranties by an employee, that he or she has not been the subject of allegations of sexual harassment in the past, become the norm. The inclusion for such provisions will provide an employer with an easier task of removing employees who are the subject of sexual harassment claims.

What this clearly means for employers moving forward is that a strong and detailed sexual harassment policy needs to be put in place and enacted. In enacting a policy, staff should be given training and employers should make sure that employees have not only received the policy but fully understand and acknowledge its contents. For employees, it means that now, more than ever, they can feel less fearful of raising allegations of sexual harassment with their employers. Both of these aspects will hopefully lead to a better and more profitable workplace environment for all.