The recent Fair Work Commission (FWC) decision in the case of John Keron v Westpac Banking Corporation has provided some guidance regarding the ability of an employer to manage incidents occurring outside work and also interesting commentary as to what constitutes consent for physical and sexual interactions.
Despite his ‘unblemished employment record’ of 35 years, Mr Keron was dismissed from Westpac on the grounds of two incidents that took place after a work-related workshop, namely:
- Mr Keron reached his hand towards the lower part of his female colleague’s buttocks and moved his hand in an upwards direction; and
- Mr Keron yelled profanities towards another female colleague later that night, at a different setting.
Mr Keron submitted that the first incident was not unwelcome and that both incidents occurred outside of the workplace and working hours and hence did not have a sufficient connection with his employment.
The Commission’s decision
In reviewing the CCTV footage in relation to the first incident, the FWC recognised that the colleague was patting Mr Keron on his shoulder and back prior to the incident, which in itself is a breach of the company’s policies. However, the FWC found that this did not form an invitation for her to be touched in a sexualised manner or in an intimate location.
The FWC held that although the conduct occurred outside of the working hours, staff members were only present at the location and in the company of each other as a consequence of their attendance at the Workshop, which was held in the course of their employment.
The second incident took place significantly after the Workshop at a different location, and after the work colleagues had parted ways from each other. This did not have sufficient connection to Mr Keron’s employment.
Key take-away for employees and employers
The FWC decision confirms that the bar of consent for physical and sexual interactions in work related environment is high. The FWC considered factors such as Mr Keron’s knowledge of his colleague’s marital status which required him to exercise caution when engaging in any physical contact with her. Employees should be mindful of their social and physical behaviours with other colleagues regardless of whether they are out-of-hours interactions outside of the workplace.
The FWC has also critiqued the appropriateness of venues and the provision of alcohol at work related events. Employers should consider whether alcohol is a necessary element and should ensure that they are fostering a safe environment in which all employees feel comfortable attending. Particularly, the participation in workplace social activities or the consumption of alcohol does not form an excuse or an invitation for being touched intimately or inappropriately.
It is also appropriate for employers to review their workplace behaviour policies to ensure that they provide clear guidance on when conduct will be considered to have a sufficient connection to work.
Please contact Jane Wright if you have any questions about the above.