DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Colwell
v
Sydney International Container Terminals Pty Limited
(U2017/9239)

Application for an unfair dismissal remedy.

[1] Luke Colwell (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 in which he seeks an unfair dismissal remedy with respect to his dismissal by Sydney International Container Terminals Pty Limited (“the respondent”).

[2] As to preliminary matters, there was no issue, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer, so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal did not involve a case of genuine redundancy.

General background

[3] The respondent, which is a fully-owned subsidiary of Hutchison Port Holdings, operates a container terminal in Port Botany, New South Wales, with approximately 300 employees employed at that site. Hutchison Port Holdings also operates a subsidiary that trades as Brisbane Container Terminals Limited. The applicant commenced employment with the respondent on 20 October 2016 as a casual employee; and from 22 May 2017 was employed on a permanent, full-time basis as a stevedore. The respondent dismissed the applicant, with a payment in lieu of notice, on 3 August 2017, on the basis of serious and wilful misconduct including breach of company policy. Relevantly, the decision to dismiss the applicant arose against the backdrop of the respondent learning, indirectly or informally, that the applicant had sent, by using social media, a pornographic video to a number of employees including female employees.

[4] This application has involved a strongly-argued case on each side. The opening submissions for the applicant drew together some of the central matters upon which his case was advanced in seeking an order for an unfair dismissal remedy. The applicant contended as being “at the heart of this case” that no employee had initiated any complaint about the video and, in such respects, there was also a lack of specificity in the allegations of the respondent (whose managerial employees had not seen the material upon which the respondent purported to rely in relation to the dismissal).

[5] The applicant submitted there was no valid reason for his dismissal, which turned on matters related to a message with a video the applicant sent using the Facebook Messenger app (“Messenger”) to (among others) a number of employees of the respondent who were also Facebook friends in his non-work hours, and not involving any form of work equipment for transmission or receipt. The submissions for the applicant included that whatever occurs between an employee and his or her friends outside the workplace is a matter for them and not a matter in which an employer has any role to play (and certainly not in the circumstances that transpired in relation to this case). Communications between friends, the applicant’s submissions continued, being communications which some friends might find offensive, are matters for resolution as between those friends themselves; and it is not a matter for an employer to regulate the appropriateness of communications between employees and their friends outside the workplace.

[6] The applicant submitted, moreover, that none of the conduct could give rise to any vicarious liability concerning unlawful sexual harassment on the part of the respondent or otherwise have a sufficient connection with the workplace to provide a valid reason for the respondent to have a role in policing it. It was entirely lawful for individuals to share material of the type in question. In the end, employees are entitled to embarrass themselves with their friends outside work, and be put in their place for doing so; and, if that happened, it is no business of the employer.

[7] The applicant submitted that, absent a complaint, the respondent proceeded further with the matter in the steps it took “on the basis of a misunderstanding about the scope of its authority” and, otherwise, contrary to its own policies as to how matters should be addressed. It was also “revealing”, the applicant’s submissions continued, that the correspondence the respondent sent to certain female employees sought information about whether the matter was known to the relevant union, the Maritime Union of Australia (“MUA”), and whether the MUA had given those employees advice about the matter. Ultimately, the applicant submitted, the role of the respondent should have been one simply to remind employees that if there was an issue they wished to raise there was a procedure to do so, and assure them the matter would be dealt with discreetly. Here, however, the respondent treated the issue, rather than in accordance with its own policy (which contemplates matters such as self-resolution), as if employees had an obligation to bring this matter to the attention of the respondent and proceed with a complaint.

[8] The applicant referred to various other matters which went to procedural fairness. The applicant is primarily seeking an order for reinstatement as an unfair dismissal remedy, and advanced that case against a range of issues including apologies that had been made.

[9] For its part, the respondent, through its solicitor, submitted that it determined to dismiss the applicant on the information that was available to it around the time of the dismissal in August 2017 (which was less information than has since unfolded only in connection with these proceedings through the orders for production and the evidence adduced). The respondent submitted that a large part of the valid reason for the dismissal here really arose after the dismissal; the applicant was given multiple opportunities to be honest, to be open, and to answer - but chose not to; and, the submissions continued, it is not good enough for the applicant to now come before the Commission with his mea culpa and indicate embarrassment about matters.  The respondent submitted that this application for an unfair dismissal remedy should be dismissed for reasons including that there was a valid reason for the dismissal and procedural fairness was afforded to the applicant.

[10] If there was a finding of harsh, unjust or unreasonable dismissal, the respondent’s evidence and submissions indicated fundamental opposition to any order for reinstatement for reasons including that part of the respondent’s expectation of candour from its employees, in relation to trust and confidence, and also matters such as:

•  the respondent’s promotion of initiatives to change the predominant cultures, so as to attempt to create a workplace that is free from sexual harassment or any forms of behaviour which are disrespectful of women;

•  that the dissemination and/or sharing of pornographic videos and images is not consistent with the respondent’s expectations of its employees and undermines attempts to ensure there is genuine respect for women in the workforce - with such dissemination being the antithesis of a female friendly environment;

•  that the applicant’s conduct indicates that the applicant does not understand and does not support the respondent’s initiatives to foster a culture of respect within the workplace and reinstatement would actively undermine such initiatives.

General policy and code of conduct context

[11] By way of background, the respondent has taken steps in recent years to encourage women to participate in employment in the stevedoring industry. Steps including the 2016 “Women as Wharfies” initiative, which was also actively supported by the MUA, have resulted in a significant increase in the number of female employees being employed by the respondent. In 2014, the respondent employed about four women in stevedoring roles; around the date of the dismissal of the applicant that number had increased to approximately 32 out of a stevedoring workforce of just under 200 employees.

[12] The respondent has in place certain policies, including one concerned with workplace bullying and harassment; that policy has been the subject of revision over time, including in connection with the comparatively recent influx of women employed in stevedoring activities. Harriet Mihalopoulos is the respondent’s General Manager – Human Resources and Industrial Relations. Ms Mihalopoulos’s evidence-in-chief highlighted clauses of the workplace bullying and harassment policy including the following aspects of clauses 7, 10 and 12:

7 What is Harassment

Harassment is a form of discrimination. It is behaviour that:

•  the other person does not want; AND

•  the behaviour offends, embarrasses, intimidates or humiliates the person; AND is either sexual, or

•  …

•  in the circumstances, a reasonable person should have expected such behaviour would offend, embarrass, intimidate or humiliate the person.

10 Non-verbal behaviour

Depending on the circumstances, any of the following types of non-verbal behaviour could amount to harassment:

•  Putting pornographic, sexually suggestive, racist and/or any other form of offensive, degrading, insulting material on walls, computer screensavers, faxes, email etc;

•  …

•  showing of pornographic videos …

12 What is Sexual Harassment?

Sexual harassment can take many forms and is often about one person inappropriately exercising power over another person. It may include physical contact, verbal comments or the display of offensive material. It also includes any other behaviour that creates an uncomfortable or sexually permeated working environment. …

Examples of sexual harassment may include but are not limited to:

…

•  Displaying any pornography (soft or hard) or any sexual or naked pictures anywhere in the workplace; …

…

•  Sexually offensive messages through email, internet or mobile phones.

[13] The evidence of Ms Mihalopoulos also highlighted the following aspects of clause 7 of the respondent’s code of conduct:

7 No Discrimination or Harassment

…

HPA does not tolerate harassment, including sexual harassment, in any form.

The values we encourage in our employees are: candour, courtesy, an ability to deal with change and respect for humanity, personal dignity and privacy. …

…

Harassment is any inappropriate conduct which has the purpose or effect of:

•  Creating an intimidating, hostile, or offensive work environment; or

•  Unreasonably interfering with an individual’s work performance.

Forms of harassment include, but are not limited to, behaviour toward another person based on that person’s race, ethnicity, gender, creed, religion, age, disability or sexual preference which is unwelcome and personally offensive to the recipient.

[14] Employees of the respondent receive induction-related information concerning these policies and code of conduct. On 20 October 2016, as part of his induction processes, the applicant successfully completed the induction assessment including the part of the assessment which was concerned with policies and procedures. Ms Mihalopoulos explained that the purpose of the assessment is to determine whether the trainee has demonstrated competence in understanding the key concepts in the policy. In cross-examination, the applicant was taken to various parts of the policy; he confirmed he had read and understood each of the various provisions of the policy to which he was taken in that cross-examination. Those provisions read:

1 Policy Overview and Scope

Hutchison Ports Australia (HPA) aims to provide a safe and healthy work environment, so far as is reasonably practicable, in which all workers are treated fairly, with dignity and respect. Bullying and harassment is a risk to the health and safety in the workplace and will not be tolerated by HPA.

This policy outlines HPA’s commitment to a safe workplace and is aimed at ensuring, so far as it reasonably can, that employees are not subjected to any form of bullying or harassment while at work. It also details the legal responsibilities of HPA and its employees in relation to preventing bullying or harassment in the workplace.

…

This policy extends to all functions and places that are work related, for example, work lunches, conferences, Christmas parties and client functions.

2 Objective

…

HPA’s aim is to:

•  Create an environment where all employees, contractors and customers are treated with dignity, courtesy and respect;

…

•  Encourage the reporting of behaviour that breaches this policy;

•  Promote appropriate standards of conduct at all times by all employees.

…

5 Harassment Policy Statement

Harassment is against the law and those found guilty of harassment are liable for prosecution under the Anti­Discrimination Act.

The most productive and satisfying work environment is one in which work is accomplished in a spirit of mutual trust and respect. Harassment is a form of discrimination that is offensive, impairs morale, undermines the integrity of employment relationships and causes serious harm to productivity, efficiency and stability of our organisation.

…

7 What is Harassment

(The provisions to which the applicant was taken are as already extracted above, and are not repeated.)

9 Verbal behaviour

Depending on the circumstances any of the following types of verbal behaviour could amount to harassment:

…

•  Offensive jokes;

…

10 Non-verbal behaviour

(The provisions to which the applicant was taken are as already reproduced above and are not repeated, and also the following part of clause 10.)

…

•  Any other form of behaviour that denigrates or trivialises someone based on their sex, race, disability etc. or in a way that jeopardises their health or safety.

12 What is Sexual Harassment?

(The provisions to which the applicant was taken are as already reproduced above and are not repeated, and also the following parts of clause 12.)

Sexual harassment can take many forms and is often about one person inappropriately exercising power over another person. It may include physical contact, verbal comments or the display of offensive material. It also includes any other behaviour that creates an uncomfortable or sexually permeated working environment. Sexual harassment is not behaviour that is based on mutual attraction, friendship and respect.

…

•  Displaying any pornography (soft or hard) or any sexual or naked pictures anywhere in the workplace;

22 Breach of this Policy

If an employee breaches this policy, they may be subject to disciplinary action. In serious cases this may include termination of employment. Agents and contractors (including temporary contractors) who are found to have breached this Policy may have their contracts with HPA terminated or not renewed.

…

[15] While the policy is expressed to extend to “all functions and places that are work related, for example, work lunches, conferences, Christmas parties and client functions”, the policy does not purport to cover conduct outside the workplace; and Ms Mihalopoulos agreed it is not intended to govern what happens with employees in their own relationships and in their own time. There was no evidence that the respondent has a separate social media policy, as is the case with some employers.

[16] In cross-examination, the applicant was also taken to various parts of the code of conduct; he also confirmed he had read and understood each of the various provisions of the code to which he was taken in that cross-examination. The parts of the Code to which the applicant was taken read:

1 Principle

…

The Code will be made available to all employees and they must become familiar and fully comply with this Code. As this Code cannot and does not cover every applicable situation or provide answers to all questions that might arise, all employees are expected to use common sense in determining what is right or wrong, including a sense of when it is proper to seek guidance from supervisors, officers or professional advisors on the appropriate course of conduct.

Failure to comply with any of these standards may result in disciplinary action, including but not limited to the termination of employment.

…

7 No Discrimination or Harassment

(The provisions of clause 7 to which the applicant was taken read as follows.)

HPA does not tolerate harassment, including sexual harassment, in any form.

The values we encourage in our employees are: candour, courtesy, an ability to deal with change and respect for humanity, personal dignity and privacy. We are also committed to providing a positive work environment that values the wide-ranging perspectives inherent in our diverse workforce and fosters individual growth and achievement of business goals.

Any act of discrimination or harassment when dealing with employees, customers and/or suppliers will not be tolerated and the offender will be subject to severe disciplinary action, including possible termination of employment.

13 Non-compliance with the Code of Conduct

Non-compliance with this Code of Conduct will result in disciplinary action. Serious and/or deliberate non-compliance could result in termination of employment.

[17] Ms Mihalopoulos was also taken in her cross-examination to aspects of the training and other content of the respondent’s policies including clause 18, which reads in part:

18 What are Responses to Harassment and Bullying?

Any bullying or harassment issue should be brought to HPA’s attention as soon as possible. There are a number of options available to employees:

18.1 Joint Agreement

Many harassment and bullying problems, concerns or complaints can be settled by discussion and agreement between the people involved.

If the employee feels comfortable doing so, they should address the issue with the person concerned. The employee should identify the bullying behaviour, explain that the behaviour is unwelcome and offensive and ask that it stop.

This is not a compulsory step. If the employee does not feel comfortable confronting the person, or the employee confronts the person and the behaviour continues, the employee should report the matter to their manager. If the manager is the alleged perpetrator, then the matter should be reported to a senior manager, or to the HR Manager.

If at any time the employee is unsure about how to handle a situation they should contact the HR Manager for support and guidance.

18.2 Investigations

HPA shall undertake an investigation into allegations of harassment and bullying if allegations cannot be resolved by discussion and agreement with the people involved.

A flow chart for the resolution of harassment and bullying is attached to this policy …

[18] It was put to Ms Mihalopoulos that, as to some undesirable behaviour that an employee might consider as being harassment that there would be benefits in a similar joint agreement-type approach reflected in clause 18.1 of the code. In the extract from transcript that follows the questions put to Ms Mihalopoulos are in italics and the responses in plain text (as with all other exchanges in cross-examination reproduced later in this decision):

Where there’s an issue like that, where the people involved come up with the response themselves, they're more likely to have a sense of ownership of that outcome and so it has more legitimacy and authority with them.  Do you agree that's another element that makes the parties sorting it out between themselves a desirable approach?---Not always, and not particularly in an industrial environment that we come from.

…

… the policy also says, before the joint agreement, it says any bullying or harassment issue should be brought to HPA's attention as soon as possible, prior to joint agreements anyway.

…

… particularly in our environment, even with these informal agreements between employees, the managers and HR often like to have a watchful eye on these situations and we often deploy delegates or ERC members in assisting these joint agreements where there’s an issue in the workplace.  But at all times HBA wants to be aware that these issues are going on in the workplace even if they're being resolved informally by the parties amongst themselves.

[19] Ms Mihalopoulos acknowledged that the policy does not purport to apply itself to conduct of employees amongst themselves outside the workplace and that its provisions as to what may or may not be done implicitly referred to the workplace. Whilst acknowledging such matters, the following evidence was also given by Ms Mihalopoulos:

So if an employee offends their friends at the pub for one reason or another, it’s not the company's role to tell its employees how they should behave with their friends?---No, however I will say that if something occurs outside of work and there’s a nexus to the workplace in that people have – there has been unwelcome conduct, they don’t unsee things when they swipe in at the turnstile and they have to work in close proximity to individuals that may have offended them outside of work.  And that’s an issue for the business to manage in a workplace.

So do you say if someone offends their friend, they’ve been friends for a long time, they have a falling out about an issue, that it’s the business of the employer to go in and to determine who's at fault there and to take disciplinary action against - - -?---No.

One of the employees because another employee doesn't like that person any more?---No, but if something has occurred that infringes on that person’s employment rights or on their employment relationship the employer has to manage that situation at work.

[20] Ms Mihalopoulos’s further evidence in cross-examination related to such matters was as follows:

In the letter [of 19 July 2017 sent to the three female employees] you suggest the company had an obligation to investigate any information that was brought to your attention?---Yes.

What I want to suggest to you is that wasn’t a correct statement of the company's policy, was it?---It’s part of our duty of care, whether it’s in the policy or not.  That’s not – the policy doesn’t contain all our obligations.

I want to suggest to you, this.  Under the policy if the person was not bothered by the alleged conduct or the issue had been resolved, clause 18 of the policy meant that there was no investigation required?---I disagree.

…

Ms Mihalopoulos, can I just come back to your letter of 19 July.  You say there you would like a meeting to understand why the person had not brought the issue to the company’s attention, at point 1?---Yes.

What I want to suggest to you is that such a request was not necessary to ensure that the policy was complied with, was it?---No, I think it’s a reasonable question to ask, as you say earlier, as to whether 18.1 has been satisfied or – and that all people involved in this felt that they had reached that joint agreement.  You’re dealing with female employees in a male dominated workplace.  It’s easy to be told that you're satisfied with the outcome that’s been informally reached by others.

Yes?---So, no, I think that’s a very reasonable question in that work environment.

I’d like to suggest this to you, that you could have simply sent a letter to the women in question here, highlighting the avenues available to them under the policy to deal with any conduct that they regarded as sexual harassment and that would have ensured that they knew what options they had?---No, because that letter was sent to them as potential witnesses in an investigation.

No one had made a formal complaint to you about this matter at that stage, had they?---We don’t need a formal complaint to look into issues of harassment in the workplace.  That’s part of our obligations as an employer in creating an environment free from harassment.

[21] Thus, Ms Mihalopoulos’s evidence was that if something occurs outside work, and there is a nexus with the workplace that may impinge on the employment relationship or employment rights, the employer has to manage that situation at the workplace. Ms Mihalopoulos was of the view, and firmly stated in cross-examination, that as part of its duty of care to employees if sexual harassment or any form of harassment had occurred then the respondent was obligated to look into those concerns for itself even if, for example, a matter had resolved, or apparently resolved, as between the relevant employees or there was no formal complaint. She considered that as part of the respondent’s obligations as an employer in creating an environment free from harassment it was not necessary to have a formal complaint to look into issues of harassment in the workplace. 

Immediate background of circumstances preceding the dismissal

[22] What follows is reconstructed from the evidence, including matters not known to the respondent around the time of the dismissal, including full extracts of transcript and correspondence to properly contextualise matters.

[23] The applicant was on a rostered week off work, which included Tuesday, 4 July 2017 (one of the headings in the applicant’s witness statement refers to “Weekend of 4 & 5 July 2017”, but 4-5 July 2017 were Tuesday-Wednesday). On that date, the applicant went to a pub for a few hours and drank about six schooners of beer; he then went home and continued drinking. Later that night (or perhaps early evening, as suggested on the recorded time-coding), the applicant received a message on Messenger from a female friend he had known since high school. The message included a video. The message read (as written):

Need your address to send your Early Christmas box mate [wink emoji].. i Only usually send stuff like this 2 my Bloke mates [name of friend], But sure youll Handle it, Lol [wink emoji] …

[24] The video in question is of short duration (ten seconds) and of poor picture resolution. It shows a sealed cardboard box being opened with the audio capturing the sound of the packing tape being removed/ripped off by what appears to be a man’s shirted arm. Once the packing tape has been removed and the cardboard box is opened by that person, what initially may be seen is large sheet of rumpled paper and a partially-protruding, bent leg. A male voice is heard saying “Yes” or “Oh yes”. The rumpled paper is quickly removed from the box by the person with the shirted arm. A naked woman is then revealed lying on her back in a cramped-like position within the confines of the cardboard box. The woman’s head is towards the rear angle of the video shot; the genital/anal area is towards the forefront of the video shot albeit not clearly visible. The woman’s bent legs are splayed open while, for a matter of only seconds, she engages in an act of, or simulates an act of, masturbation with her right hand - and who has, on one description of it, an exaggerated smile or, on the description in the applicant’s submissions, laughing. The video then finishes.

[25] While there were further Messenger communications between the applicant and his friend, the applicant (relevantly) sent the message with the video to other Facebook friends using Messenger at times commencing from around 10.40pm on Tuesday, 4 July 2017 The applicant’s evidence was that he did not know exactly how he did that because, while he has about 100 Facebook friends and 20 with whom he works, he had wanted to send it only to “some of his mates”. Included among those to whom the applicant sent the video individually by Messenger were 19 employees of the respondent as well as, it fell from the applicant’s cross-examination, Paul McAleer, Branch Secretary, Sydney Branch of the MUA. Mr McAleer was described as the MUA official who is responsible for the respondent’s Port Botany site. It at least appears from a documentary record that was in evidence that the message and video was sent by the applicant for a second time to Mr McAleer on the morning of 5 July 2017, but that is unclear and was a late-arising matter raised by me after the evidence was complete.

[26] Reaction from the individuals who received the video by Messenger was mixed. The applicant’s evidence in this regard was “A lot of them liked the joke, but there were a few who didn’t.” The applicant said he realised he had shared the message/video (by Messenger) with a lot of his Facebook friends and that he felt embarrassed and regretted what he had done. He put a public post on his Facebook page at about 4.05pm on Wednesday 5 July 2017 which read (as written):

A post of mine was sent last night. It was posted to a my fb friends some got offended. I apoligise for that. Hit send all by mistake.

[27] Reaction to the applicant’s apology on his Facebook page was, again, mixed - including from a small number of employees of the respondent as shown in posts on the Facebook page.

[28] One of the recipients of the message/video was a female employee of respondent. The following communications were exchanged between that employee and the applicant on Messenger (as written in the italicised text below). From 2.40pm on Wednesday, 5 July 2017, the following communications were exchanged

The employee: Are you serious? Mate don’t send me that shit

[29] In further exchanges between the employee and the applicant that appear to have been disaggregated over a number of hours the following day rather than being an immediately time-sequential series of exchanges. The messages continued after the applicant’s Facebook page apology which had been made around 4.05pm on 5 July 2017 (e.g., with the one message in the sequence below showing 7.45pm on 5 July 2017) as follows:

The applicant: Got sent to everyone didnt mean to. My bad

The applicant: So sorry [name] did not mean to offend you at all. Feel really bad, again, was not my intention.

The employee: Luke I think you’re a good guy! I don’t appreciate msgs like that and Iv heard you have been doing this shit to others. If I was you I’d delete Facebook and be the guy I know you are.. if it keeps going someone will take it really serious and you will end up with no job.

The applicant: Thank you [name], and your right. It was a wrong button push. Some liked some didn’t.

The applicant: Truly not meant to offend.

The employee: Mate whatever just don’t send me that shit again ..i liked you as a mate but you pushed me

[30] It may be noted that, although the applicant wrote in the apology on his Facebook page that he had “Hit send all by mistake” it was acknowledged in the applicant’s case that a send-all function is not available using Messenger and that messages to recipients are only those individually selected. Moreover, in the case in the applicant’s apology to the female employee as it concerned “a wrong button push”, she noted “but you pushed me”.

[31] What is known from the evidence as to what next unfolded is that, on or about 10 July 2017, the applicant received a telephone conversation from Mr McAleer. The applicant knew that Mr McAleer was going to be telephoning him. As to this, the applicant said the following in cross-examination:

Can I ask whether Mr McAleer rang you or you rang Mr McAleer?---Mr McAleer rang me.

A bit of a surprise for you?---Sort of, yes, I knew he was going to ring.

When you say you knew he was going to ring, why do you say that, sir?---Well, I knew a lot of members weren’t happy about it and from my experience if you’re unhappy with something at work you contact your union and explain to them what’s happening and they support you.

When you say that there, I don’t want to misquote you, sir, that there were people not happy about it, what is the “it” that we’re talking about here?---Well, anything at work.

Sir, a moment ago you said, “Not happy about it.”  I'm going to put to you, sir, that the thing that the people were not happy about it, was that some of the 19 employees that had received your video weren’t happy?---You asked if I was surprised I’ve been getting phone calls from Mr McAleer, and I said, “No, not really”, because that’s our procedure as union members.  If we have problems at work we go through our union so as not to feel intimidated by the employer.

A moment ago you said that there were employees who were not happy about “it”, do you recall saying that?---Yes.

I’m suggesting - - -?---I assume some of them must have contacted the union and that’s why I wasn’t surprised to get the phone call.

Sir, we have to start speaking about the “it”?---Well, that would be the video.

… So Mr McAleer rings you, where are you when he rings you?---I was at home.

At home.  You've never spoken to Mr McAleer on a telephone before?---Never.

Are you wondering where he gets your phone number from, anything like that?---He’d spoken to a number of other employees and he would have had that on record, as I’m a member.

[32] The following was also said by the applicant in cross-examination:

What does he say to you?---He just asked me about the post and I explained what had happened.  He goes, “Have you got any dramas at home?  Are you all right?”  I said, “I’ve got a few little issues”, I think.  And he goes, “What are you trying to do about it?”  I said, “I don’t really think they’re big issues, but now that you've mentioned it, they’re probably a bit bigger than what I’ve thought they were.  He asked if I needed any time off.  I sort of thought about it, I didn’t want to take time off because I’ve got bills and rent to pay, but thinking about it I said, “Yes, it might be a good idea.”

Was his tone angry?---No, not at any time.

Did he chastise you in any way for sending the video?---No, he just said in his opinion it was inappropriate.

When Mr McAleer said in his opinion it was inappropriate, did he say anything, in your conversation, which led you to believe that he had seen the video?---No.

Did he ask you for a copy of the video?---No.  Well, he actually got a copy as well.  It got sent to him as well.

Sir, are you saying that - - -?---But he hadn’t opened it, he hadn’t seen it.

Sir, are you saying that along with the 19 employees of my client that you sent the video to that one of them was Mr Paul McAleer of the MUA?---That's correct.

…

… So when Paul McAleer rang you, on 10 July, he said something in that conversation that led you to believe that he was aware of the Facebook post, as you call it?---Yes.

That’s why he didn't ask you for a copy of it, because he had a copy, correct?---Yes.  He asked what the video actually was but at that time he didn’t even know he had a copy, he hadn’t checked any of – he’d been on holidays, hadn’t checked any of his messages or anything.

Can I ask you what he actually said to you, sir, that led you to believe that to be the case?---He said, “I’ve heard you put a post out.”

Okay.  Was there anything else that he suggested that you do, in relation to the post?---No.

Was there anyone else at the MUA that you recall sending the same video to?---No, not that I recall.

You say in your statement: “He suggested that I take some time off work to get myself sorted out.” Were they his actual words?---Yes.  Not actual words, but pretty much that’s what it was suggesting, yes.

Do I take it, sir, that one of the things that you had to get sorted out was the angst and the conflict that had been created by you sending the video?---No.

… Did Mr McAleer ask you as to what you personally had done about the Facebook post?---No, I told him I put an apology out.

I put it to you, sir, that what Mr McAleer was suggesting to you was that you had done a very bad thing and that you now needed to be away from the workplace for a period of time, do you agree with that proposition?---No, I don’t.

Do you tell this Commission, sir, that Mr McAleer’s suggestion to you that you take some time off work to get yourself sorted out had nothing to do with the fact that you had sent this pornographic video to employees at the site?---No.  As I told you, I told him I had some difficulties outside of work, personal problems.

But he rang you for one purpose and one purpose only, didn't he, sir, to talk about the post?---Yes, he did.

And you maintain to this Commission that he [was] not angry?---I don’t think - well, he didn’t sound angry over the phone, he was quite calm.

Did he suggest that you do anything else, in relation to what you had done?---No.  As I said, I had already told him I apologised for it and I didn’t know what else I could do.

Did he suggest that you raise it with your employer?---No, he didn’t.

He didn’t?---No.

Did he say anything in regard to your employer?---No, he didn’t.

In requesting the leave, you didn’t believe that it was relevant, at all, to your application for leave?---No, I didn’t.

[33] Mr McAleer subsequently made arrangements with the respondent for the applicant to proceed on the three months of leave without pay – which Mr McAleer then did by sending emailed correspondence to the respondent about the matter and also having a telephone conversation with Ms Mihalopoulos in which he relevantly advised that the applicant needed to take the time off because of personal problems. The various communications over 13-14 July 2017 relevantly culminated in the respondent giving approval for the applicant to take three months of leave without pay. The last day for which the applicant was paid wages ahead of his period of leave without pay was 16 July 2017.

The chain of events leading to dismissal

[34] On or about 19 July 2017, that is, within days after the applicant’s leave without pay had commenced, it “became apparent” to Ms Mihalopoulos, given certain matters that were discussed by her with certain employees whom she knew to be MUA delegates, that a number of employees had either received a pornographic video from the applicant or were aware of the sending of a pornographic video by the applicant. At that point in time, Ms Mihalopoulos did not know which of the respondent’s employees had received the video from the applicant, or its precise content. Indeed, it appears she may have been misinformed about the content, as there is a suggestion that the content of the video had been described to Ms Mihalopoulos as involving more than one woman as there is a reference in subsequent correspondence to what had been described as “Lesso porn”.

[35] Ms Mihalopoulos was then to write various items of correspondence, all issued by email on 19 July 2017 (the full text of the correspondence highlighted in the following three dot-points is set out later in this decision), namely:

•  to each of the three female employees - of her understanding that consequent upon the “unsolicited media communication”, that the matter was not brought to the respondent’s attention, and that the MUA had “purported to impose a sanction on the male MUA member”;

•  to the applicant – that information had come to attention strongly suggesting that the respondent was misled with respect to the basis for the application for leave without pay; and that, rather than being concerned with personal reasons, the absence was allegedly a result of the applicant being placed on what had been described as “a ban” by the MUA and concerning activities which, if substantiated, were in circumstances of illegal sexual harassment of female employees;

•  to the MUA about a “very strong suggestion that the [MUA] purported to deal with an alleged illegal harassment in our workforce” and further advised that if it was the case that the MUA “chose not to share this information with us then we would regard the actions of the Union as extremely disappointing and hardly supportive of what should be our joint efforts in providing a workplace that is free from sexual harassment”.

[36] It must be said that the understanding of Ms Mihalopoulos about the purported MUA ban was not, in the end, established on the evidence that was before the Commission. What is known from the evidence of the applicant, as extracted earlier, is that he knew Mr McAleer was going to be telephoning him because the applicant knew that a lot of members “were not happy about it” (namely the message with the video); the applicant assumed some members had contacted the MUA and that was why he was going to receive the telephone call from Mr McAleer; and it was Mr McAleer’s suggestion to the applicant that he should take three months of unpaid leave to deal with personal issues (and, although I have not set out the evidence in such respects in this decision, there was evidence as to the nature of some of those personal issues). There was a side wind in other evidence as to post-dismissal discussions between Ms Mihalopoulos and MUA officials that the union may also have made arrangements for the applicant to engage with a professional employee assistance provider in connection with the taking of that unpaid leave.

[37] While the existence of a disciplinary ban was not established on the evidence, it appears that Ms Mihalopoulos was quite genuinely concerned about matters related to the sending of a pornographic video to female employees as a sexual harassment matter and at least equally, if not even more so, genuinely concerned that MUA had taken it upon itself to discipline the applicant and that the MUA was involved in a “cover-up” - and in circumstances where she otherwise expected a collaborative approach to addressing matters such as sexual harassment.

Events on and from 19 July 2017

[38] Given the comments in the recent decision in Parker v Garry Crick’s (Namour) Pty Ltd as The Trustee for Crick Unit Trust T/A Cricks Volkswagen [2018] FWCFB 279, it is apposite to note that the matter of not identifying the names of the female employees was discussed in proceedings; I informed the parties of the course I would adopt in such respects in not identifying them by name. (If it is considered necessary to make an order in respect of the names/identification of the female employees, as was proposed at one point, liberty is granted to make an application in such respects.)

[39] Having been advised of the names of three female employees who may have received a pornographic video from the applicant, Ms Mihalopoulos, as I have outlined earlier, sent correspondence dated 19 July 2017 to each of them. The correspondence attached a copy of the respondent’s workplace bullying and harassment policy. In advising the employees that “we must investigate any information that is brought to our attention” about “unsolicited and offensive material” comprising a pornographic video clip, Ms Mihalopoulos also foreshadowed a wish to meet to better understand certain matters. The correspondence read (with formal parts omitted, as is omitted in all other correspondence reproduced in this decision):

Re: Alleged Sexual Harassment

I am sending this letter to you on a confidential basis and also attaching a copy of our Workplace Bullying and Harassment Policy.

Unfortunately it has come to our attention that you were one of a number of employees that received an unsolicited social media communication from a Hutchison Ports Sydney employee by the name of Luke Colwell.

It would appear that this matter was not brought to our attention. We also understand that, without disclosing the matter to Hutchison Ports the Maritime Union of Australia (MUA) has purported to impose a sanction on the male MUA Member.

Sexual Harassment is illegal. As your employer we have a duty to ensure that our workforce is not directly or indirectly exposed to this type of behaviour. As a part of this commitment we must investigate any information that is brought to our attention. In particular we understand that the unsolicited and offensive material was in the form of a pornographic video clip which has been described to us as “Lesso Porn”

We would like to meet with you to better understand:

i) Why you may have chosen to not bring this matter to our attention?

ii) How this matter came of the attention of the Maritime Union of Australia?

iii) Whether the Maritime Union of Australia advised or encouraged you to not report the matter to Hutchison Ports?

You are welcome to bring a support person to the meeting. The meeting is not disciplinary in nature however we do intend to act upon any unlawful sexual harassment that occurs in the workforce. The persons attending your meeting will be Michelle Cui (HR Manager) and myself.

As this is matter is now being investigated as a part of our Workplace Bullying and Harassment Policy it is important that you maintain confidentiality and that you do not directly or indirectly say or do anything that may regarded as victimisation of any person who is assisting us in our investigation.

The Company has an Employee Assistance Program available to all employees if they feel that they need assistance with any matter. The phone number is [number]. This is a free and confidential counselling service.

Should you require further clarification please contact me on [number].

[40] Ms Mihalopoulos considered that it was appropriate to send the correspondence particularly in circumstances of dealing with female employees in a male-dominated workplace, albeit none of the employees had made a complaint to the respondent. As indicated in the extracts of the cross-examination reproduced earlier, Ms Mihalopoulos considered that a formal complaint is not needed to commence an investigation, more particularly and for the reasons she outlined, in relation to matters which may involve harassment or sexual harassment. As to the correspondence Ms Mihalopoulos sent to the three female employees:

•  one employee promptly sent correspondence to Ms Mihalopoulos on 19 July 2017 in which she wrote that she had never received anything from the applicant. Shortly thereafter the employee further wrote in an email of her concern that there was an implication she was withholding information about a sexual harassment case, because that was a serious allegation. The employee advised that, as a result, she was extremely upset. She advised she felt threatened by the company and also felt that the company was attacking her;

•  one employee sent correspondence to Ms Mihalopoulos on 20 July 2017 in which she wrote “… I was one of the females that received an inappropriate msg from Luke. I replied to him saying it’s inappropriate and if he could leave me out of those type of msgs. I left it at that wasn’t aware the company and union were acting on this.”;

•  one employee did not respond to the correspondence from Ms Mihalopoulos.

[41] That same day, 19 July 2017, Ms Mihalopoulos sent correspondence to the applicant which read:

Re: Allegations of Misconduct

You applied for a period of Leave Without Pay commencing 17 July 2017 for a period of three months, At the time of considering this application we were led to believe that the period of leave was for personal reasons and Leave Without Pay was granted accordingly.

Some information has come to our attention that strongly suggests that Hutchison Ports Sydney was misled with respect to this request. In particular we were advised today that your absence was allegedly a result of you being placed on what was described as “a ban” by the Maritime Union of Australia (MUA).

We have made inquiries about this supposed “ban” and it would appear that the MUA was provided with information with respect to some of your activities. If substantiated, your activities were in the circumstances illegal sexual harassment of what appears to be a number of female employees.

We intend to revoke your period of unpaid leave so that you can be required to attend disciplinary meetings in relation to misconduct including sexual harassment of a fellow employee. Before we revoke your period of leave without pay we are going to give you the opportunity to explain the facts and circumstances surrounding the “ban”, we would also add that the MUA at no stage in this alleged process of imposing the ban notified Hutchison Ports Sydney of the facts and circumstances.

Your written response must be received by 5:00pm on Friday, 21 July 2017. Once we have your written response we will make a decision in relation to your period of unpaid leave. If your period of unpaid leave is revoked you will be required to attend disciplinary meetings in the week commencing Monday, 24 July 2017. You will be permitted to attend these meetings with a support person as termination of employment is a possible outcome.

Finally you must maintain confidentiality with respect to this matter, you are not to directly or indirectly contact any employee in relation to this investigation. We acknowledge that you may wish to seek the assistance of the MUA, we will be seeking the MUA’s assistance in the provision of information through alternate channels.

The Company has an Employee Assistance Program available to all employees if they feel that they need assistance with any matter. The phone number is [number]. This is a free and confidential counselling service.

Should you require further clarification please contact me on [number].

[42] On 19 July 2017, Ms Mihalopoulos also sent correspondence to Warren Smith, Assistant National Secretary of the MUA. Mr Smith has responsibility along with elected Sydney Branch officials of the MUA for representing the industrial interests of employees who are members of the MUA employed at the respondent’s Port Botany container terminal stevedoring operations. That correspondence read:

I am attaching to this email correspondence sent to your member Luke Colwell today.

Whilst noting that we are still gathering information there is a very strong suggestion that the Maritime Union of Australia (MUA) purported to deal with an alleged illegal sexual harassment in our workforce.

If it is the case that the MUA chose to not share this information with us then we would regard the actions of the Union as extremely disappointing and hardly supportive of what should be our joint efforts in providing a workplace that is free from sexual harassment.

We do intend to investigate this matter and your member, Mr Colwell, will be the subject of a disciplinary investigation.

Your member Mr Colwell, is free to bring a support person to the disciplinary meetings that are planned however we would respectfully suggest that there may be the possibility of a conflict of interest if the Union were to also seek to represent Mr Colwell at the disciplinary interviews.

Please ensure that all communications in relation to this matter are sent to me directly marked confidential. We have already advised all participants in this investigation that they are to not directly or indirectly discuss the matter or victimise participants in the process.

If you have any further questions please feel free to contact me.

[43] On 20 July 2017, Mr Smith sent correspondence to Ms Mihalopoulos which read:

I am back in the office next week Harriet. The branch and union as a whole takes this matter with great seriousness.

Seeing I am away it would be best if all timeframes could be adjusted so I can deal with this with you and your team properly.

Knee jerk reactions are best avoided in my view and it is best if we deal with the matter with the seriousness you raise it in but without rush that could be detrimental to an appropriate outcome.

Can you confirm that your timeframes can be adjusted so we can both properly deal with the issues when I return next week.

[44] The applicant had no knowledge of the correspondence of 20 July 2017 that Mr Smith sent to Ms Mihalopoulos. Moreover, Mr Smith drafted the correspondence without discussion with the applicant; rather it was drafted on the basis of discussion with the relevant union branch, which Mr Smith understood to have had “consistent conversations” with the applicant. (It may be noted, in passing, that the applicant and Mr Smith first met on the first day of the hearing of this application, namely 8 December 2017; he was not aware that the message/video had been sent to Mr McAleer along with the other recipients; and he saw the video for the first time an hour before giving his evidence.)

[45] In response to Mr Smith’s correspondence of 20 July 2017, Ms Mihalopoulos advised as follows:

Timeframes can always be adjusted and yes, this is a very important issue that must be dealt with at the highest level of your union.

I am prepared to adjust timeframes with respect to the Maritime Union of Australia’s (MUA) potential conflict of interest in the matter. The investigation into Mr Luke Colwell’s conduct however, must proceed. Mr Colwell is yet to respond, and we are not prepared to provide him with any extension to the timeframes communicated to him. He is well aware of the allegations against him and he has been given sufficient time to respond.

Without pre-judging the situation there is some real potential for a conflict of interest in your union representing Mr Colwell in circumstances where we understand (but do not know), that the MUA has purported to impose a penalty on him.

I look forward discussing the matter with you upon your return.

[46] Mr Smith acknowledged that Ms Mihalopoulos’s correspondence of 20 July 2017 involved advice that the applicant must respond. Mr Smith also considered that, contrary to the what had been written in Ms Mihalopoulos’s correspondence as to the applicant being aware of the allegations and having been given sufficient time to respond, there had not been a formal and proper approach to dealing with the matters. As Mr Smith put matters, the union wanted to sit and have dialogue - because an “email trail” only makes matters worse; and this would have allowed consideration of an appropriate response which was accurate and correct. Moreover, the MUA’s members get letters of the type sent by Ms Mihalopoulos “daily for different things” and it was rare for terminations of employment to occur because there is usually a process of dialogue which results things being resolved.

[47] On 21 July 2017, Mr McAleer sent correspondence to Ms Mihalopoulos with the subject line “Sexual Harassment matters” which read:

Your inability to ever answer the phone is incredibly frustrating.

There are once again numerous issues that are seemingly unresolved as a consequence of management failure.

The latest absurdity being the sexual harassment letters that have gone out to individuals, I know that you have spoken to Warren Smith who is currently returning from overseas.

My last discussion with him included discussions regarding informing you that the three individuals that have sought the unions [sic] advice being [the applicant, and two named female employees] could delay in responding to the Companys [sic] correspondence by close of business today to next week.

Can you please confirm that the company have accepted this at your earliest convenience.

In any event the individuals are getting legal advice and will respond next week.

[48] Despite what was written in Mr McAleer’s correspondence of 21 July 2017, above, there is no evidence to indicate Mr Smith had informed Ms Mihalopoulos that the applicant and two female employees whom he identified by name were seeking advice.

[49] Ms Mihalopoulos understood from Mr McAleer’s correspondence of 21 July 2017 that the MUA was assisting the applicant and two of the three female employees to whom she had written on 19 July 2017. Ms Mihalopoulos responded to Mr McAleer’s correspondence as follows:

I have already provided a response to these matters to Warren [Smith] directly yesterday. To re-iterate, there is no basis for any delay with respect to Luke Colwell responding to matters that are clearly known to him.

[Name] has already responded and appears to be of the view that nothing has happened and presumably has nothing to contribute. [Name] is yet to respond to our communication and in the absence of any such response we can see no reason for any delay.

[50] The applicant’s written response of 21 July 2017 to Ms Mihalopoulos’s correspondence of 19 July 2017, which was drafted without input or advice from the MUA as he was unable to contact Mr McAleer by telephone and discussed the matter only with work colleagues, dealt first with certain matters of a personal nature which I do not reproduce in this decision other than to note that the applicant advised that he had requested the period of unpaid leave “to concentrate on these issues”. The response otherwise read (as written):

To the matter of sexual harassment, I am at a loss as to the context of these alligations, i am deeply shocked and upset to be accused of such conduct and would be happy to answer any question regarding these allegations.

[51] As to the response the applicant provided to Ms Mihalopoulos, the applicant in his evidence described himself as having been shocked and confused at the allegation of sexual harassment and did not “connect the idea of sexual harassment with my Facebook post [sic; Messenger messages]” The applicant elaborated in his evidence that he thought sexual harassment “meant things like groping or wolf-whistling in the workplace” and could not understand how there could be an allegation of that type about him. The applicant also said as to the allegations in the correspondence from Ms Mihalopoulos of 19 July 2017, “If substantiated, your activities were in the circumstances illegal sexual harassment of what appears to be a number of female employees”, that he did not “connect it with the video” which he had considered as a “bit of a joke” and not intended to offend. Among other matters, the applicant thought “some people might get a laugh out of it and unfortunately they didn’t”. He also noted that matters had been sorted out through what had been exchanged with the female employee to whom he had apologised by Messenger and by his apology on his Facebook page. In later cross-examination, however, and in a way that appears internally-contradictory as to the applicant’s understanding of matters, the following evidence was given:

You understood that it was, indeed, serious?---Yes.

You understood that you were being accused of sexual harassment?---Yes.

And you knew that that allegation of sexual harassment related directly to you sending the pornographic video to 19 of my client's employees, didn't you, sir?---At that stage, yes, I did.  That’s the only the I could connect it to.

Okay.  The only thing that you could connect it to?---Yes.

[52] For her part, Ms Mihalopoulos understood the applicant’s comment about being at a loss as to the context of these allegations and his comment about being shocked and upset to be accused of such conduct as a denial by the applicant as to the allegations contained in her correspondence of 19 July 2017.

[53] On 28 July 2017, Ms Mihalopoulos had a conversation with one of the female employees and created a file note of that telephone discussion. Over objection from the applicant to its receipt into evidence in circumstances including where the employee advised Ms Mihalopoulos that she did not want to give evidence in these proceedings and the file note of the conversation traversed matters including hearsay, I admitted that file note into evidence as annexure HM-17 to the witness statement of Ms Mihalopoulos. (On 20 November 2017, Ms Mihalopoulos asked the employee in question whether she would be prepared to give evidence in these proceedings; the employee indicated that she did not want to “go to the Commission”. Ms Mihalopoulos apologised that, in those circumstances, what was in the respondent’s case in relation to this application would show there had been a discussion between them.) I have read and considered that file note within the particular parameters outlined during the proceedings. Given the status of the document and aspects of its content, I have decided not reproduce or summarise it in this decision; and in doing so I am conscious of the fact that the female employee did not give evidence and was not, thereby available for cross-examination (and also what potentially may be the sensibilities of the employee given what she said in what otherwise was assured would be a confidential conversation). Regardless of the evidentiary status of HM-17 and the weight it may be given in circumstances where the employee did not herself give evidence, it may be accepted that some of the matters recorded in the file note as having been said in that conversation informed Ms Mihalopoulos’s own thinking or state of mind.

[54] Ms Mihalopoulos sent correspondence dated 1 August 2017 to the applicant which read:

You were made aware on 19 July 2017 of the existence of serious allegations of misconduct. Taking into account the very serious nature of these allegations, I must place you on notice that your ongoing employment is being considered. We have an obligation to act upon sexual harassment in the workplace. Sexual harassment is illegal.

The allegation against you is that you sent or caused to be sent or posted matters on social media that were received by a number of employees. A number of employees who received the offending communication were female.

We believe that you are aware of the offensive nature of the images that were contained in the communication. We further understand that, notwithstanding your previous denials to the Company, you have subsequently expressed sorrow for your actions. It would appear that you do not and cannot deny that you sent or caused to be sent the pornographic material.

We are very disappointed at the attempts of some individuals to apparently cover up this incident. We all have an obligation in ensuring that our policies are adhered to. If it were the case that you were genuinely remorseful about your actions (as has been reported to us), then it would have been appropriate for you to make a full disclosure to your employer. You did not do this and you appear to be very reluctant to engage on the issue.

The purpose of this email is to advise you of the allegation of serious and wilful misconduct. We appreciate that you are currently on a period of approved leave. We will give you the opportunity during your period of leave to provide a written response. Your written response must be received no later than close of business Thursday, 3 August 2017, 5:00pm. In the interim, you must not attempt to access the site. You must not discuss this matter with any of the individuals who were the recipients of the offending email/social media posting. Any attempt to victimise the individuals involved will result in your instant dismissal.

[55] The comment in the preceding correspondence concerning the applicant having expressed sorrow for his actions was based on Ms Mihalopoulos’s understanding of the apology that she had been informed was made by the applicant on social media. Ms Mihalopoulos described her correspondence of 1 August 2017 as an attempt on her part to provide the applicant with an opportunity to disclose any information that may relate to the sending of the pornographic video and any evidence of genuine remorse shown for his action.

[56] In his cross-examination, the applicant acknowledged that he understood from, and was in no confusion about, Ms Mihalopoulos’s correspondence of 1 August 2017 that the respondent was accusing him of sexual harassment by sending or causing to be sent or posted matters on social media an offending communication to employees, including female employees; and that he was aware of the offensive nature of the images that were in the communication, which was why he had made the Facebook apology. The applicant said he also guessed that the reference to “expressed sorrow for your actions” would have been “the social media posts, the apology” and he also understood that part of the correspondence which read: “It would appear that you do not and cannot deny that you sent or caused to be sent the video”.

[57] The applicant did not respond to the correspondence of 1 August 2017 because, in a telephone conversation Mr McAleer advised the applicant not to respond. Mr McAleer further informed the applicant that he would respond directly on his behalf.

[58] It is common ground that, on 1 August 2017, Mr Smith and Ms Mihalopoulos had a telephone conversation which traversed a range of issues, including “Mr Colwell’s matter” and allegations of sexual harassment by a managerial employee of the respondent as to a female employee. Mr Smith wanted the respondent to “hold off” on taking any further steps until representatives of the MUA and the respondent had had a chance to discuss the allegation concerning the applicant and the other allegations against the manager, among “a box of issues” that might hopefully have been resolved. Mr Smith said that in circumstances where Ms Mihalopoulos had agreed that they would meet, the inference to him was that the MUA and the respondent could work through issues and seek to find a resolution, as they always try to do.

[59] While it was Mr Smith’s evidence that it was certainly his intent and he thought it had been agreed that the respondent would not take any further steps until discussions were held, Ms Mihalopoulos was resolute under cross-examination about what she said as it concerned the applicant and the necessity for his provision of a response within the stipulated timeframe. That evidence of Ms Mihalopoulos, which I accept, was that she said to Mr Smith:

Like I have said in my email, Warren, I am happy to meet with you to talk about the union’s involvement in all of this, which is a big concern to us, but Luke has got to respond. It is all in my letter to him. He must respond to the allegations in the timeframe given to him.

[60] While it is clearly the case that Mr Smith wanted the respondent to hold off on taking any further steps in relation to the applicant until there were further discussions, I also accept that Ms Mihalopoulos made it plain that the applicant’s response was required in the timeframe given to him (and nor did she agree to not take steps concerning the applicant). It may be noted in this regard that the period of 48 hours for the applicant to provide his response is in accordance with the respondent’s standard practice, and Ms Mihalopoulos was of the view that the applicant was well aware of the issues being alleged. Moreover, based on past experience in relation to such letters, if employees need an extension of time, that extension is requested through the MUA - but Ms Mihalopoulos agreed that here she was unwilling to extend the timeframe in the case of the applicant.

[61] As it happens, arrangements had been made concerning the attendance of Mr Smith and Mr McAleer at the workplace for a meeting at 10.00am on Tuesday, 8 August 2017 involving representatives of the respondent and elected employee members of the Elected Representative Council (“ERC”) – a committee that meets monthly to deal with operational-type matters. Ms Mihalopoulos and the two MUA officials were to be in attendance at that particular meeting so that the respondent and the union could try to assist in resolving some “dysfunction” that had arisen concerning relationships between the committee’s employee and management representatives. Mr Smith separately took steps to cause a Microsoft Outlook (“Outlook”) calendar invitation to be sent on his behalf on the subject of “Meeting with Harriet Mihalopoulos, Vernon Ferreira [Operations Manager], Warren Smith and Paul McAleer RE Hutchison Allegations” – also indicating 10.00am on Tuesday, 8 August 2017.

[62] On 2 August 2017, Mr McAleer sent correspondence to Ms Mihalopoulos which read:

I have received this advice [the correspondence Ms Mihalopoulos sent to the applicant the previous day, 1 August 2017, outlining allegations and requiring a response by 5.00pm on 3 August 2017] from Luke and cannot believe it, this is a deliberately provocative move on the basis of what has happened today and looks so reactionary and vengeful, that it stinks of unprofessional conduct and weakens the arguments that you are attempting to make.

Warren [Smith] had indicated to me that you have arranged to meet next Tuesday to discuss this issue, and we have the sexual harassment allegations against a manager and I haven’t heard absolutely anything, nor has the individuals who made the complaint, nor have they been spoken to regarding the impact it has had on them.

We have had people who are entirely disconnected from the matter attached receive materials which is a gross invasion of privacy and will now be followed up with formally.

Luke has already responded to you and now you are requesting a response by tomorrow, this will not be forthcoming until such time as you can provide evidence that corroborates your allegations in the attached letter. This is fundamentally about due process, and if it was not coincidental with Luke requiring leave to recover from some traumatic experiences of late and receiving assistance regarding some personal issues, as well as a rumour campaign we wouldn’t be discussing this issue at all. I look forward to your retraction of the letter to Luke immediately, or a detailed outline of the allegations and evidence to back them up for your attack on Luke Colwell.

[63] Ms Mihalopoulos did not respond to Mr McAleer’s correspondence; she had ceased communications with him as she considered he had been aggressive to her for a number of weeks. As to the comment in Mr McAleer’s correspondence that Mr Smith had indicated to him that Ms Mihalopoulos had arranged with to meet on Tuesday (8 August 2017), to discuss the issue, I have already addressed in this decision what the telephone conversation on 1 August 2017 between Ms Mihalopoulos and Mr Smith entailed.

[64] Mr McAleer sent a copy of his correspondence of 2 August 2017 to the applicant. As Mr McAleer had informed the applicant not to respond to Ms Mihalopoulos’s correspondence of 1 August 2017, the applicant assumed that Mr McAleer’s correspondence was the response which he had been advised would be made by Mr McAleer on his behalf. Under cross-examination, the applicant characterised Mr McAleer’s correspondence of 2 August 2017 as involving Mr McAleer “just asking them to provide evidence”. The applicant did not agree with propositions put in cross-examination that it would have been a good idea to come forward to the respondent and admit that he had done wrong and that he had taken steps to address that wrong (through the apologies). As to this, the applicant’s evidence was: “Well, no.  Not considering that they might not even have been referring to the video.  They could have been referring to something else or someone else complaining that I had done something at work to somebody”. The applicant later further explained in his cross-examination: “[Mr McAleer] actually states it here.  He would like a detailed outline of the allegations and the evidence to back them up.  I mean, if you make an allegation, you need evidence and they weren’t forthcoming”.

[65] Although the applicant had been advised by Ms Mihalopoulos, and Ms Mihalopoulos had reinforced to Mr Smith, that the written response must be provided by 5.00pm on 3 August 2017, the applicant did not, acting on Mr McAleer’s advice, provide a response. The type of brinksmanship of Mr McAleer in advising Ms Mihalopoulos that a response would not be forthcoming until such time as the respondent can provide evidence as to the video coupled with seeking an immediate retraction of Ms Mihalopoulos’s correspondence to the applicant of 1 August 2017 was seemingly not the most optimal approach to adopt - and also, put at its lowest, unfortunate given that Mr McAleer had personally been sent the message/video by Messenger.

[66] Ms Mihalopoulos was of the view that any and all of the matters that the applicant could or would rely on were known to him and, in her view, the applicant was choosing not to respond to what were clear and unambiguous allegations of misconduct. In circumstances where the applicant did not respond to Ms Mihalopoulos’s correspondence of 1 August 2017, Ms Mihalopoulos decided to implement the termination of the applicant’s employment. Ms Mihalopoulos did not consider, for reasons going to matters including the Women as Wharfies programme and the type of culture the respondent was attempting to engender, that further training or the like would be a suitable alternative. Ms Mihalopoulos considered “there was no room for people like Luke Colwell in our business” given the Women as Wharfies program and the type of culture that the respondent was trying to establish on the waterfront. As to this, the cross-examination was:

But you accept, don't you, having a mixed gender workforce is something of, well, relatively recent genesis at Port Botany and Hutchison --Yes.

Do you accept that as part of that you would expect there to be a period where issues about how that workforce operates are worked out - - -?---No.

Between the members of the workforce?--- No. We had had four female employees since I started there without incident.  For the most part, employees demonstrate a solid understanding of our expectations around sexual harassment. We take it very seriously and we’re trying to do something innovative by increasing the number of women on the waterfront.  The understanding around sexual harassment has always been the same.  The threshold hasn’t changed.  This is not a common conduct we’ve seen.

[67] In further cross-examination, Ms Mihalopoulos explained:

What I want to suggest to you is this.  [Name] here was saying she told Mr Colwell she regarded it as inappropriate, asked to be left out of that sort of communication, and left it at that?---Yes, she did.

That makes it a situation appropriate where if the company has some concerns about it, can deal with then by monitoring the conduct to ensure there is no repetition, doesn't it?---Well, that’s in respect of just [name].  I think what’s really important to us, we weren’t relying on a complainant in this instance.  We became aware of a potential situation, an allegation that we put to an employee.  Even if all the females were comfortable with receiving that particular image it didn’t negate the fact that we saw it as a breach of our policy.

But are you saying that if it was the case that all of the recipients of Mr Colwell's communication were happy to receive that, that is a matter that the company regards itself as entitled to regulate in its workplace?---If it impacts the workplace.

No, no, I'm talking about just that scenario?---Yes.

If this was a scenario where all of the individuals are happy to receive that communication from Mr Colwell, are you saying that that’s something that the employer is entitled to regulate?---We would probably, yes, regulate that and make our position known on that.

What I want to suggest to you is this.  There's nothing in your policy that makes it clear that the company holds itself out as entitled to do that, is there?---No, but the business also has to manage risk to employees and if that situation arose again we would address it again.

What I want to suggest to you now is that it would be entirely appropriate in this matter for the company to have proceeded by way of any of those options, training, a warning, requirement for an apology, and continued monitoring of the situation?---I disagree.  The nature of the pornographic material was very serious.  We had an employee that was offended.  The employee, once made aware of the allegations, did not even approach the situation with any honesty or transparency.  In fact, in the only response I got Mr Colwell said he had no idea of the context of these allegations, which I now know to be untrue. So those options were not suitable in this instance.

[68] On 3 August 2017, the respondent dismissed with applicant with a payment in lieu of notice. The correspondence advising of the dismissal read:

Re: Termination of Employment

You have been advised of allegations of serious and wilful misconduct and provided with an opportunity to respond. I have received an email communication from Paul McAleer on 2 August 2017 which contains a number of incorrect factual matters and assumptions.

I believe in the circumstances, you have had an opportunity to respond. I am not prepared to permit you to return to the company and I wish to advise you that I have made a finding of serious and wilful misconduct including breach of company policy.

Notwithstanding the finding of serious and wilful misconduct, I have elected to terminate the employment by payment in lieu of notice in accordance with the Enterprise Agreement. Your last day of employment will be today’s date.

You are to return all company property. Your personal effects will be couriered to your home. We will correspond separately with Mr McAleer in relation to his correspondence.

[69] The applicant’s case contended that the respondent cancelled the meeting that had been the subject of the Outlook calendar invitation. As noted earlier, Mr Smith had caused the Outlook calendar invitation to be sent for the meeting with a small number of union and management participants, which identified the same time and date as the ERC meeting. The regular ERC meeting that had been scheduled for 8 August 2017 was cancelled because Mr Smith informed Ms Mihalopoulos that they would not be attending in circumstances where the respondent’s Acting CEO, John Willy, could not attend. As to this, Mr Smith explained that “there is a history of a complete incapacity to make a decision without the CEO’s involvement”. Correspondence sent by Ms Mihalopoulos on 8 August 2017 to ERC members concerning the cancellation in that respect read:

Good Afternoon ERC Members

As you are aware the Company was due to meet with Warren Smith and Paul McAleer today at 10:00am to discuss ERC management representatives and attendees among other matters.

Unfortunately the meeting has been cancelled this morning as the Branch have requested John Willy, CEO to attend. John is currently off-site and not available. As you are aware, the parties re-scheduled the ERC for tomorrow as we had expected to resolve this matter today. The Company is prepared to proceed with the ERC meeting as scheduled, however as we have not had our meeting with senior officials today our position has not changed and we reserve the right to have management representatives of our choosing attend, which is consistent with the right of employees choosing their attendees and representatives.

Can you please confirm whether it is the intention of the ERC to proceed so that Allocations are planned accordingly.

[70] While there was evidence as to the reason why the ERC meeting was cancelled by the respondent – namely because Mr Smith informed Ms Mihalopoulos that the MUA officials would not be attending absent the presence of Mr Willy, the evidence does not support a conclusion that the respondent separately cancelled the meeting which had been the subject of Mr Smith’s Outlook calendar invitation - and which was to involve not the entire ERC but only a smaller group comprising Mr Smith, Mr McAleer Ms Mihalopoulos and Mr Ferreira (and not Mr Willy). Moreover, there is nothing in the evidence to suggest that Mr Smith and Mr McAleer, for example, otherwise attended at Port Botany to meet with Ms Mihalopoulos and Mr Ferreira about those matters. The meeting that was the subject of Mr Smith’s Outlook calendar invitation was not so much, it seems, cancelled by the respondent (as the case for the applicant appeared to contend) but, rather, seemingly just fell-away in circumstances where Mr Smith had informed Ms Mihalopoulos that he and Mr McAleer would not be attending for the ERC meeting as Mr Willy would not be in attendance that day and they did not otherwise attend for a meeting with Ms Mihalopoulos and Mr Ferreira about the “Hutchison Allegations” (or, as Mr Smith described it in his evidence, to seek through discussion to “undo” the dismissal already that had been effected on 3 August 2017).

[71] On or about 18 August 2017, Ms Mihalopoulos received a telephone call from Mr Smith. Mr Smith advised Ms Mihalopoulos that she was on speaker and that Mr McAleer was also present. (It may be noted there appears to be a typographical error in the statement of Ms Mihalopoulos in referring to the telephone call having occurred on 21 August 2017 rather than 18 August 2107, which was adverted to before she gave evidence, but then not finally corrected.) Mr Smith advised that he wanted to discuss the termination of the applicant’s employment. A short discussion ensued, the content of which is not in any contest, with the outcome being that Ms Mihalopoulos accepted Mr Smith’s suggestion that there should be a meeting on 21 August 2017. The meeting was held on 21 August 2017 with the participants being Ms Mihalopoulos, Mr Ferreira, Mr Smith and Mr McAleer. The telephone discussions of 18 August 2017 and the meeting of 21 August 2017 did not result in any reversal of the respondent’s decision to dismiss the applicant or acceptance of the MUA’s suggestion that matters be dealt with by way of referral to the Commission as a “New Approaches File” (within the meaning of s.576(2)(aa) of the Fair Work Act).

[72] On 24 August 2017, the application for an unfair dismissal application was lodged.

Consideration

[73] While the case for the applicant was advanced as having “at the heart of this matter” that no employee had initiated a complaint about the applicant to the respondent, I have no hesitation in accepting the views of Ms Mihalopoulos that the respondent employer considers that if it learns of matters - particularly including potential sexual harassment or bullying - that employer responsiveness is not and should not be considered necessarily to be contingent on a complaint having being made.

[74] If an employee engages in conduct outside of the physical workplace towards another employee that materially affects or has the potential materially to affect a person’s employment that is a matter which legitimately may attract the employer’s attention and intervention. The use, out of work hours, of social media is one such example in the case of matters concerning bullying and sexual harassment. In this regard, Ms Mihalopoulos’s evidence referred to matters including duty of care and managing risk to employees, and the range of other considerations she addressed. That was an appropriate managerial or organisational response. The situation here was that there was a paucity of direct or confirmable information Ms Mihalopoulos had available to her in attempting to take a responsible approach on behalf of the respondent employer and the female employees who may have received the video. There may be a complex of reasons why an employee does not wish to raise complaint concerning sexual harassment or bullying – and it is a notorious fact that non-reporting of harassment or sexual harassment is a not uncommon workplace phenomenon or employee reaction. For example, in this case, the messages one of the female employees sent to the applicant included an expression of concern that he would lose his job for engaging in conduct in sending material of this nature. It is not difficult, given the experience of such matters, to envisage or draw inferences as to other reasons why a female employee would not wish to have been seen to be making an issue of matters by initiating a complaint in circumstances where women have been employed as stevedores by the respondent only in the comparatively recent past in what is a male-dominated industry. (To avoid doubt, there was no hint of anything occurring here in the nature of conduct of the type described in Maritime Union of Australia v DP World Ltd [2014] FCA 1321.)

[75] Some of the correspondence penned by Ms Mihalopoulos and steps she took might be considered imperfect. For instance, Ms Mihalopoulos acknowledged she should not have sought to be privy to the communications between members and the MUA (as she did in the correspondence of 19 July 2017 to the female employees) - but those matters were raised in the context of her understanding about the banning of the applicant by the MUA, and concern that the union was involved in withholding information about matters and covering-up what had occurred. I accept, indeed it is clear, that Ms Mihalopoulos was not seeking for any type of improperly-motivated purpose to try to ascertain what, if anything, may have passed between the union and a number of its female members. Moreover, in a type of paradox of unintended consequences given the concerns which brought about the correspondence to the three female employees, one employee’s response to Ms Mihalopoulos’s correspondence indicated that she was extremely upset at the company about being written to in the terms that were used and being asked why she had not reported matters; and felt she was being threatened by the respondent.

[76] An unresolved matter, or an unsatisfactorily resolved matter, is why the applicant, or his union, or both, adopted the approach that was taken in communications with the respondent. It is now plain that the applicant was so sufficiently aware of concern about the video as to have posted an apology on his Facebook page for having caused offence. Mr McAleer had himself been the individual recipient of that video on the same day as the 19 employees of the respondent and, according to the applicant, was later informed by Mr McAleer that it was “inappropriate”. The applicant’s own evidence was that he knew a lot of members of the MUA at Port Botany were unhappy about what he had done in sending the video to employees.

[77] The applicant submitted that the respondent “just doesn’t get over the line” in terms of a valid reason for the dismissal, and that argument was entitled to be made regardless of what went on between the union and the employer during the course of this unfolding and it was not clear what it was that the respondent was looking at in making allegations, and that should have been clear. The applicant also submitted that an employer should set out in its correspondence with an employee that it wishes to take some disciplinary action in respect of, first, the precise conduct that is alleged against the employee and, second, it should set out precisely how it says that this conduct is contrary to any policy. The applicant’s submissions continued that the code was not mentioned in any of the respondent’s correspondence and, in any event, the provision relied upon by the respondent simply restates a definition which seems to be a hybrid between the definition of sexual harassment that is well known and found in all of the relevant legislation and also seems to incorporate harassment for other reasons. Somewhat surprisingly, borrowing the characterisation in the respondent’s submissions, as to the “put-up-or-shut-up” approach that was adopted, even in the proceedings the applicant continued to adopt this approach. As I have noted earlier, the applicant was asked about Mr McAleer’s correspondence of 2 August 2017 in which Mr McAleer sought, among other things, “a detailed outline of the allegations and evidence to back them up for your attack on Luke Colwell”. The applicant said “I mean, if you make an allegation, you need evidence and they weren’t forthcoming” (my underlining). I do not understand (for no explanation was advanced, and Mr McAleer was not called to give evidence in the applicant’s case) why the applicant and Mr McAleer took the approach which, on one description, involved cavilling about evidence of the existence of the impugned video and/or that the applicant had sent it to employees given what is now known from the evidence; and, adopting a put-up-or-shut-up approach.

[78] While the level of detail or the scope of what had occurred was not confirmable at the time of the dismissal, it is now known from the evidence that the applicant sent the message containing the video to 19 employees of the respondent (and to Mr McAleer) and the applicant has provided internally-contradictory and at times implausible evidence that he did not know what the allegations concerned. The applicant submitted that the exchange of material between employees in their own time could never be the employer’s business, as an employer has no role in overseeing communications with people who are your friends; and that proposition is good until reaching the point in the authorities to which reference was made as to out of hours conduct.

[79] What was put as what I accept is a real, contestable issue regarding the dismissal is that this was out-of-work conduct, not involving any work-related facilities, and involving the applicant and employees of the respondent who had self-selected to be Facebook friends – and in relation to conduct among whom the applicant has forcefully submitted is no proper business of the employer under the terms of its policies or otherwise. Here, however, there was nothing to indicate that there was anything other the cornerstone of the employment relationship which led to the applicant having 20 work colleagues as his Facebook friends and sending the video to 19 of them by Messenger. Employment by the respondent of the applicant and the 19 employees is the relevant nexus here, it appears, and their being Facebook friends stemmed only from the employment. Approached another way, if there was any nexus other than that those individuals were all employees of the respondent, there was no evidence of it. The applicant selected those to whom to send the video by Messenger, including 19 of the 20 individuals who were both employees of the respondent and Facebook friends; as noted earlier, it was conceded in the proceedings that this could not have been a mishap of inadvertently hitting a “send all” or equivalent. A female employee of the respondent made plain to the applicant her comments about the video in the Messenger commentary that then went between them – and, it may be noted, in that commentary she drew a connection with work in her responses to him.

[80] As the applicant’s submissions noted, it is not unlawful “at large” to sexually harass someone and matters were squarely advanced in the applicant’s submissions that the applicant did not engage in unlawful sexual harassment due to the necessity in state and federal anti-discrimination statutes for a relevant connection with the employment for provisions of those statutes to be engaged. The applicant referred to and relied upon the approach adopted in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 (“Keenan”), in relation to out-of-hours conduct as to sexual harassment and vicarious liability, including its discussion of Mcmanus v Scott-Charlton [1996] FCA 1820, Leslie v Graham [2002] FCA 32 and other authorities. The applicant submitted that, on the authorities, more than simply common employment is required and there has to be a particular character to the conduct.

[81] Despite the submissions for the applicant inviting me to make a finding about whether there was unlawful sexual harassment (and, the applicant’s submissions urged, positively find that it did not and, indeed, could not), it would be jurisdictionally inapt for me to purport to make a determinative finding one way or the other. I would, however, observe that anti-discrimination laws and judgments considering the scope and application of those laws are evolving, including as to matters concerning orders for damages: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. It may well be the case that, depending on the jurisdiction, a court or tribunal of competent jurisdiction would consider the conduct of the type involved in this case constituted - however the formulation might be described in relevant statutes - unlawful or proscribed sexual harassment (see, variously, Sex Discrimination Act 1984 (Cth); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Discrimination Act 1991 (ACT); and Anti-Discrimination Act 1996 (NT)).

[82] For example, s.28A(1) of the Sex Discrimination Act refers to unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. It is illustrative to read what was said by Kiefel J (as she then was) in South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 (“Trainor”) about the Sex Discrimination Act:

“63 The need for the practice of sexual harassment to be eliminated in the workplace and for employers to take steps towards that end were referred to in the second reading speech addressing the amendments to the Sex Discrimination Bill 1983 (Cth). In relation to clause 106, which became s 106, Senator Ryan said (Senate, Parliamentary Debates, vol S101, 1983, p 2914):

‘Clause 106 deals with the vicarious liability of employers and principals. The Bill had already provided for employer and principal liability where the employee or agent does an act that would be discrimination on the ground of sex, marital status or pregnancy if done by employer or principal. The new provision makes it clear that this is so whether or not it would be unlawful for the employee or agent to do that act. Clause 106 also covers employer and principal liability for acts of employees and agents that constitute sexual harassment – these must be acts in connection with employment or duties as an agent. The practice of sexual harassment can be eliminated only when employers take positive steps to eliminate it from the workplace and make clear to their staff that it cannot be tolerated. Clause 106 makes it clear that an employer or principal who has taken reasonable steps to prevent employees and agents from engaging in any form of discrimination will not be liable.’

(Emphasis added [in original]).’

64 These aims require a wide operation to be given to s 106(1) and to the words ‘in connection with the employment of the employee’, as the Chief Justice has observed. In my view the appellant’s approach would unduly restrict the operation of the SDA [Sex Discrimination Act 1984 (Cth)] and in a way which could not have been intended.

65 The appellant’s argument that there should be a sufficiently strong nexus between the conduct and the employment for it to be liable, seeks to import the doctrine of vicarious liability in tort into the SDA. The question which arises in tort is whether the employee, for whose actions it is sought to make the employer liable, was acting in the course of their employment when they committed the tort: see generally F Trindade & P Cane The Law of Torts in Australia, 3^rd edn, Oxford University Press, Oxford, 1999, p 735. As the authors there point, it is sometimes said that an employee was on ‘a frolic of his own’ to describe actions outside the course of employment: also see Joel v Morison (1834) 6 Car& P 502, 503. Vicarious liability in this context requires a much stronger connexion than an Act such as the SDA would require.

…

70 In my view no narrow approach to the operation of s 106(1) is warranted. It is consonant with its purpose to read the words ‘in connection with the employment of the employee’ as requiring that the unlawful acts in question be in some way related to or associated with the employment. Once this is established it is for the employer to show that all reasonable steps were taken to prevent the conduct occurring, if they are to escape liability under s 106(2). In this way the aim of the Act, to eliminate sexual harassment in the workplace, might be achieved. This will require that employers take steps to ensure that it does not occur. The Act encourages that approach. Whilst I am not suggesting that the employer takes on proof about the steps taken at the outset, the operation of s 106(1) is wide and an employer must be vigilant of the possibility of such practices in the workplace.

…

73 In relation to conduct which occurs in a location away from the actual workplace, two further cases are instructive of the approach which should be taken. In Smith v The Christchurch Press Company Limited [2000] NZCA 341; [2001] 1 NZLR 407, the conduct occurred at lunchtime away from the workplace. The Court of Appeal held that the sexual harassment was ‘in the course of employment’ because it was between two present employees, arose out of the work situation and had the potential to adversely affect the working environment. The latter observation is of particular interest. It would seem logical to say that if it could be seen to have this effect, the necessary connection was present. Further, in Chief Constable of the Lincolnshire Police v Stubbs [1999] ICR 457; [1999] IRLR 81 the Employment Appeal Tribunal held that a police officer was acting in the course of his employment, within the meaning of s 41(1) of the Sex Discrimination Act 1975 (UK), when he subjected a colleague to sexual harassment although the incidents occurred at social events away from the police station. They were regarded as extensions of the workplace. Morrison J(P) observed that it would have been different if the acts had occurred during a chance meeting between the two police officers at a supermarket, but these were social gatherings of work colleagues.” (My underlining)

[83] The issue of vicarious liability (within the meaning of s.106 of the Sex Discrimination Act) arose from the case advanced by the applicant in contending there could be no valid reason-related justification for the dismissal arising in relation to the out-of-hours conduct of the applicant. It may be noted that no part of the respondent’s case was advanced on the basis that Ms Mihalopoulos was attempting to avert vicarious liability for the respondent or seeking to defend the dismissal on that basis. Rather, the evidence referred to matters including nexus with the workplace, duty of care, managing risk to employees, as well as the underpinnings of the respondent’s policies and the letter of the code of conduct. Those policies and the code are directed to contributing to an appropriate workplace culture, and, coincidentally, would, if properly applied by the respondent, also assist the respondent in avoiding findings of vicarious liability in instances where, for instance, sexual harassment, bullying or race discrimination is found to have occurred. The actions of Ms Mihalopoulos in relation to the circumstances of this case also may be considered in the light of what the now Chief Justice of the High Court of Australia said in Trainor that “an employer must be vigilant” and the references made in that judgment to conduct which occurs in a location away from the actual workplace.

[84] As to the operation of the Sex Discrimination Act, it is also illustrative to consider what was said by Bromberg J in Ewin v Vergara (No 3) [2013] FCA 1311. The judgment of Bromberg J bears quoting at considerable length in this decision given its exposition concerning relevant matters as to the operation of the Sex Discrimination Act:

“27. In the context of conduct which is directed (intentionally or not) by one person to another or others, “unwelcome” simply means conduct that is disagreeable to the person to whom it was directed. In Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1 at 5, Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at 247 and by Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [289]. The requirement that the impugned conduct be unwelcome raises a subjective test (Kraus v Menzie [2012] FCA 3 at [22] (Mansfield J)) and looks to the reaction (whether articulated or not) of the person who has been subjected to the conduct.

28 The other element listed above looks to whether a reasonable person would have anticipated a reaction to the conduct involving offence, humiliation or intimidation. That element raises an objective consideration (Kraus at [22] and Poniatowska at [289]) which is to be answered by reference to what a reasonable person would have anticipated in all of the circumstances. What the person who perpetrated the conduct anticipated or otherwise perceived would be the reaction of the person harassed, is not relevant.

29. There are no issues of interpretation raised as to whether the conduct relied upon by Ms Ewin was capable of meeting the statutory definition in this respect. However, as a factual matter, Mr Vergara disputed that the conduct alleged was unwelcome and that a reasonable person would have anticipated that Ms Ewin would be offended, humiliated or intimidated.

30. It is apparent then that s 28A only raised one issue of construction which I will later address but that more substantial construction issues were raised in relation to s 28B(6). I turn then to consider those issues in more detail.

31. Taking a broad view of what I understand Mr Vergara sought to put in issue, Mr Vergara contended that the scope of the conduct proscribed by s 28B(6) does not extend to conduct which has not occurred during working hours whilst the “workplace participants” are gathered at the workplace for the purpose of undertaking work. Additionally, Mr Vergara contended that the term “workplace” extends only to the premises exclusively occupied and utilised by the workplace participants of that workplace and not to common areas shared by workplace participants with others such as employees of other workplaces or the public generally. Relevantly to the facts raised by this case, Mr Vergara in this respect contended that the “workplace” of Ms Ewin and himself was confined to the area exclusively occupied by LLA as its office and not to any common areas on the floor of the office building on which the office was located.

32. There is no warrant for narrowly construing provisions such as s 28B: South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130; (2005) 144 FCR 402 at [70] (Kiefel J). Section 28B is a remedial provision found in legislation which protects human rights and ought to be broadly construed: AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [24] (the Court); IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J) and 39 (Gummow J); Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 372 (Brennan J) and 394 (Dawson and Toohey JJ).

33. As McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69], the context, the general purpose and the policy of a statutory provision are amongst the best guides to its meaning. Reading legislation in light of its objects has been said to be of particular significance in the case of legislation which protects or enforces human rights: AB v Western Australia at [24] (the Court); Waters at 359 (Mason CJ and Gaudron J); X v McHugh (Auditor-General for the State of Tasmania) (1994) 56 IR 248 at 256 (Wilson P). Section 28B was enacted in furtherance of the object expressed in s 3(c) of the SD Act and as such, ought to be construed by reference to Parliament’s stated objective of eliminating, so far as is possible, discrimination involving sexual harassment in the workplace.

34. Workplaces are inanimate and incapable of being subjected to sexual harassment. What makes a workplace animate are the people who work in it and the relations between them. The object of eliminating sexual harassment in the workplace is thus to be understood as directed at the elimination of sexual harassment from the work based relationships and the workplace environment of persons who work together for or in a common enterprise, or in other words a common workforce. That, it seems to me, is the mischief that s 28B is directed to addressing.

35. However, whilst the task of statutory construction must take account of the mischief to which a provision is directed, that task must commence with the words used: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98 at [39] (the Court).

36. The terms of s 28B appear to have been framed so as to capture within their protective scope, various kinds of relationships which are commonly found in a workplace. Protection from sexual harassment is conferred by reference to different criteria identified in each of the subsections of s 28B. Each criterion utilised requires that a connection referrable to being a member of or prospective member of a common workforce be in existence between the person harassing and the person harassed. Each of s 28B(1), (3) and (5) fasten upon a workplace relationship criterion such as the relationships between employer and employee, principal and agent or partner and partner as the basis for the connection to a common workforce. Each of s 28B(2) and (4) utilise fellowship as a co-worker as the basis for the requisite connection to a common workforce. Section 28B(6) utilises a commonality of workplace as the nexus in relation to harassment which takes place at that workplace. In each case, what is sought to be provided for, as a requisite element of eligibility for protection, is that both the person harassing and the person harassed have a sufficient nexus (or prospective nexus) to the same workforce in the sense earlier described. It can be seen that the purpose of the provision is to address sexual harassment as between members of the same workforce rather than harassment which merely occurs at a workplace and which may, for example, have been engaged in by a visitor or other interloper.

37. Temporal considerations such as whether the harassment occurred during working hours or whilst the participants were working, are not expressly referred to in s 28B and nor does the underlying policy objective suggest that such a restriction was generally intended. In the case of two fellow employees, a contravention of s 28B(2) was found by Branson J in Leslie v Graham [2002] FCA 32, where the sexual harassment occurred out of work hours in a serviced apartment that the employees were sharing whilst attending a work-related conference.

38. The definition of “workplace” in s 28B(7) is cast in wide terms. A “workplace” is not confined to the place of work of the participants but extends to a place at which the participants work or otherwise carry out functions in connection with being a workplace participant. Section 28B(6) itself speaks in similar terms of “a place that is a workplace” of both participants. The inclusive definition of “place” in s 28B(7) is also in wide terms and facilitates various means of transport (“ship, aircraft or vehicle”) being a “workplace” if the other criteria for that definition are satisfied. That wide approach recognises that work or work based functions are commonly undertaken in a wide range of places (including on various means of transport) beyond the principal or ordinary place or places of work of workplace participants from a common workforce. Such places would commonly include the premises of clients, suppliers, associated businesses, conference halls and other venues where work functions are held and in transportation vehicles during work related travel. The underlying policy objective is accommodated by such a construction and such a construction is also consistent with the scope of the other subsections of s 28B.

39. The restriction which limits the operation of s 28B(6) and maintains a sufficient nexus between the place and the workforce is that the place must be “a workplace of both” workplace participants.

40. I need not identify the outer limits of the scope of s 28B(6). It is sufficient for current purposes to observe that there is no warrant for adopting the construction for which Mr Vergara contends.

41. As will become apparent, some of the incidents of sexual harassment alleged against Mr Vergara occurred outside of the LLA office. Whether the requisite nexus required by s 28B(6) existed in the place at which the incident occurred is a matter I will deal with when I consider each of the incidents concerned.

42. Further, I reject Mr Vergara’s contention that the meaning of “workplace” is confined to premises exclusively utilised by the workforce of which the workplace participants are members. That construction was put by Mr Vergara in aid of his contention that an office building corridor situated between the front door of the LLA office and the lifts on the same floor, was not a “workplace” of Ms Ewin and himself. The wide definition of “workplace” provides no textual support for Mr Vergara’s contention. No discernible policy objective was suggested for such a construction and the object of the provision would be significantly undermined if such a narrow construction was adopted. Section 28B(6) fixes upon a place where workplace participants of the same workforce gather and interact in order to work. The objective of eliminating sexual harassment in the workplace would be significantly undermined if, associated common areas such as entrances, lifts, corridors, kitchens and toilets were construed as falling beyond the geographical scope intended by s 28B(6).”

(My underlining)

[85] The appeal from the judgment of Bromberg J, see Vergara v Ewin [2014] FCAFC 100, proceeded in part on the basis that the appellant challenged the finding at first instance of unlawful sexual harassment occurring away from the workplace, including at a pub and on a street. In that appeal, and in what is the leading authority in this area, the majority (North and Pagone JJ) found no error in the conclusions of Bromberg J that it did. The majority recited with approval the judgement of Bromberg J at [227]-[233] as to the conclusion that the events at the Waterside Hotel, away from the place of work (and also on a street), were captured by the Sex Discrimination Act in that case.

[86] Considering the approaches to sexual harassment of the Federal Court in Trainor, Ewin v Vergara (No 3) and the majority judgment in Vergara v Ewin, it is apposite also to consider what the Full Bench of this Commission said about social media in the context of being bullied “at work” within the meaning of s.789FF(1)(b)(i) of the Fair Work Act in Bowker; Coombe; Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The Victorian Branch and Others [2014] FWCFB 9227 (“Bowker”):

“[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.

[54] The use of social media to engage in bullying behaviour creates particular challenges. Conceptually there is little doubt that using social media to repeatedly behave unreasonably towards a worker constitutes bullying behaviour. But how does the definition of ‘bullied at work’ apply to such behaviour? For example, say the bullying behaviour consisted of a series of facebook posts. There is no requirement for the person who made the posts (the alleged bully) to be ‘at work’ at the time the posts were made, but what about the worker to whom they are directed?

[55] During the course of oral argument counsel for the MUA submitted that the worker would have to be ‘at work’ at the time the facebook posts were made. We reject this submission. The relevant behaviour is not limited to the point in time when the comments are first posted on facebook. The behaviour continues for as long as the comments remain on facebook. It follows that the worker need not be ‘at work’ at the time the comments are posted, it would suffice if they accessed the comments later while ‘at work’, subject to the comment we make at paragraph 51 above.

[56] We acknowledge that the meaning we have ascribed to s.789FD may give rise to some arbitrary results. A worker may only access comments on social media which constitute unreasonable behaviour (with the meaning of s.789FD(1)(a)) at a time when they are not ‘at work’ and the behaviour will not fall within the scope of Part 6-4B. But it seems to us that such a consequence necessarily follows from the fact that the legislature has adopted a definition which is intended to confine the operation of the substantive provisions.

[57] An additional consideration arises in the context of unreasonable behaviour through the medium of social media. What is the position in respect of facebook posts which have no relevant workplace connection, eg posts from a former partner who has no workplace connection with ‘the worker’. If such posts constitute unreasonable behaviour and they are read by the worker while he or she is ‘at work’, do they fall within the scope of the definition in s.789FD (assuming that they also create a risk to health and safety: s.789FD(1)(b))? We doubt that such an outcome was intended by the legislature having regard to the legislative context and the language of s.789FD. As this issue does not directly arise in the present matter it is unnecessary for us to express a concluded view, but it is illustrative of the sort of practical issues which may arise in the application of the definition of ‘bullied at work’ in s.789FD.

[58] We do not think it appropriate to canvass the practical application of the definition of bullied at work beyond what we have already said. The application of the meaning of ‘at work’ in a particular case will depend on all the circumstances and it is appropriate that the jurisprudence develop on a case by case basis. …”

[87] Just as the question of social media in the context of bullying at work will, as the Full Bench of this Commission noted in Bowker at [58], develop on a case-by-case basis, the majority of the Full Court of the Federal Court (Black CJ and Tamberlin J) in Trainor at [38] noted of the Sex Discrimination Act: “It is true that in this area of the law each case is likely to turn on its own facts, but within a framework of consistent principle developed over time by the cases” - and may, I would venture, further develop in relation to unlawful sexual harassment as between employees including in connection with the use of social media. Moreover, the sweep of anti-discrimination laws as to sexual harassment in the employment context typically has been broader than industrial law-type approaches to such matters – as shown in a raft of anti-discrimination cases concerning such matters (and workers’ compensation matters have their own approach as to liability as to, for example, arising out of or in the course of employment). A valid reason for dismissal as a consequence of an employee’s conduct may exist if there is a connection between out-of-hours conduct and the employment, as described in the well-established high bar approach to such matters in Rose v Telstra Corporation [1998] AIRC 1592 (“Rose”) (see also Farquharson v Qantas Airways Limited [PR971685] and Appellant v Respondent (1999) 89 IR 407)); but, co-extensively, an employer potentially also may be subject under anti-discrimination laws concerning vicarious liability as to that same out-of-hours employee conduct and, moreover, the reach of the nascent anti-bullying jurisdiction under the Fair Work Act is yet to be fully tested.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[88] The applicant contends there was no valid reason for the dismissal and the conduct in that sending the message/video was not serious and wilful misconduct which could justify termination in circumstances where the conduct was: engaged in outside the workplace; did not utilise any work-based devices or email addresses; engaged in outside of work hours; and only affected persons who had brought themselves within the applicant’s “online friendship circle, by reason of their having sought or consented to the applicant’s friendship”.

[89] The first matter that needs to be put to rest in this case was the applicant’s contention that the respondent could not have a valid reason to dismiss the applicant because the applicant used social media, in this case Messenger, to send a video to 19 employees who were Facebook friends in his own time and not using work-related equipment.

[90] There are many cases emerging as to the use of social media involving consideration of dismissal, or similar, in a range of different contexts also including post-dismissal conduct - each turning on its own considerations - see, for example, Chief of the Defence Force v Gaynor [2017] FCAFC 41; Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; Banerji v Bowles [2013] FCCA 1052; Jurecek v Director, Transport Safety Victoria [2016] VSC 285; Marroun v State Transit Authority [2016] NSWIRComm 1003 (but see also Marroun v State Transit Authority [2017] NSWCA 27).

[91] As to unfair dismissal applications and other types of matters in this jurisdiction involving use of social media, texting between private mobile telephones and the like - with each case again turning on its own considerations - see (in no particular order): Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097 (and also Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157); Pearson v Linfox Australia Pty Ltd [2014] FWC 446; Wilkinson-Reed v Launtoy Pty Ltd [2014] FWC 644; Starr v Department of Human Services [2016] FWC 1460; Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186; Anders v The Hutchins School [2016] FWC 241; Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544; Applicant v ACT Department of Education and Training [2012] FWA 2562; McIntyre v Special Broadcasting Services Corporation T/A SBS [2015] FWC 6768; Somogyi v LED Technologies Pty Ltd [2017] FWC 1966; Remmert v Broken Hill Operations Pty Ltd [2016] FWC 6036; Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA 7358; Fallens v Serco Australia [2015] FWC 8394; O’Keefe v Williams Muir’s Pty Limited t/a Troy Willams The Good Guys [2011] FWA 5311; Wilkinson-Reed v Launtoy Pty Ltd T/A Toyota Launceston [2014] FWC 644; Campbell v Qube Ports Pty Ltd T/A Qube Ports and Bulk [2017] FWC 1211; Mayberry v Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend T/A Subway [2011] FWA 3496 (and see also, as a post script, the Federal Court penalty proceedings in Mayberry v Kijani Investments Pty Ltd ATF The Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238); Renton v Bendigo Health Care Group [2016] FWC 9089; Vosper v Solibrooke Pty Ltd T/A Angie’s Cake Emporium [2016] FWC 1168; Little v Credit Corp Group Limited t/a Credit Corp Group [2013] FWC 9642; United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2017] FWC 3274; Ambrose v Moolarben Coal Operations Pty Ltd [2014] FWC 3899; and Higgins v Coles Supermarkets Australia Pty Ltd t/a Coles [2017] FWC 6137. (Cases are also beginning to emerge about social media in other contexts, such as “unfriending” on Facebook in the context of allegations of bullying: Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Trust and Ors [2015] FWC 6556.)

[92] For discussion of certain cases, see also the learned article by Louise Thornthwaite, namely, Social Media, Unfair Dismissal and the Regulation of Employees’ Conduct Outside Work (2013) ALLL 164.

[93] The applicant’s submissions referred to cases such as Rose and that it is clear that in certain circumstances an employee’s employment may be validly terminated because of out-of-hours conduct, but limited to circumstances where the conduct is likely to cause serious damage to the relationship between the employer and employee, damages the employer’s interests, or is incompatible with the employee’s duty as an employee; and also employers do not have “an unfettered right to sit in judgment on the out of work behaviour of their employees”. The submissions for the applicant also referred to reasons why the applicant’s conduct could not properly be characterised as illegal sexual harassment within the meaning of relevant anti-discrimination laws applicable in New South Wales; and, thereby, in circumstances where no law operated to prohibit the conduct of the applicant then the respondent could have no exposure or liability in respect of the conduct, and as it had no impact on the workplace it could not constitute a valid reason for dismissal.

[94] The respondent submitted that the dismissal of the applicant was not harsh, unjust or unreasonable because there was a valid reason for the termination of the applicant's employment and prior to the implementation of the termination of the applicant’s employment, the applicant was given an adequate opportunity to understand and respond to the concerns of the respondent relating to his conduct in relation to the sending by Messenger of a pornographic video to 19 employees of the respondent; and he was given an adequate opportunity to respond to the possibility of the termination of his employment. In oral submissions, matters were elaborated as being that the applicant knew what he was being accused of and effectively chose not to respond to that; and, the respondent’s submissions continued, in terms of nexus with the workplace the applicant’s submissions seemed to assume that if “something happens in cyberspace that somehow it is not connected with the workplace”. The submissions for the respondent continued - traversing matters similar in ways to what was discussed by the Full Bench in Bowker about social media - as follows:

Now these are not individuals who sit at computer terminals and always have email addresses and respond to their emails.  A large part of how my client communicates with its workforce is by mobile phones.

But you don’t have to accept that as a submission from me because if my friend is correct here then the rhetorical question becomes this.  Is the person who picks up the communication at night watching television, watching the cricket, who’s is not at work, how do you reconcile the person who picks up the pornographic video when they’re watching the cricket at night with the person who happens to be rostered on shift that night?  So this notion that somehow where you are when you receive the communication should sway you as to whether there is a connection with the workplace, you should have no regard to that.

…

… My friend seems to think that just because it happens in cyberspace, mobile phone to mobile phone, that that is somehow game, set and match on the question of nexus.  Now we would say that shouldn’t trouble you at all. …

[95] The submissions for the respondent continued with reference to the analogy involving watching the cricket to the circumstances applied to the circumstances of this case, as follows:

But what we do know, but what we do know - and remember my client was dealing with a limited amount of information on 19 July.  It had a little bit more information on 20 July but my friend can’t get away from the fact that there was an individual out there and she did receive it and she very much had a very strong view about it and she conveyed that view.  She was offended, she obviously did not like it, she did not think it was appropriate and I think that you could infer from that quite easily, Commissioner, that it made her [uncomfortable] not watching the cricket but in her employment.  In her employment, and you don’t get out of that by simply taking the Commission to decisions that might have been determined in relation to sexual harassment under the Sex Discrimination Act or anywhere else.

It’s a very simple question on the question of validity.  It goes to no one could suggest that it was contrived.  No one could suggest that it was capricious.  The applicant knew what he stood to be accused of.  …

[96] Then there was also the code of conduct which, as the respondent’s submissions noted, is expressed in broader terms than the policies - in as much as it reads at clause 7:

HPA does not tolerate harassment, including sexual harassment, in any form.

The values we encourage in our employees are: candour, courtesy, an ability to deal with change and respect for humanity, personal dignity and privacy. We are also committed to providing a positive work environment that values the wide-ranging perspectives inherent in our diverse workforce and fosters individual growth and achievement of business goals.

Any act of discrimination or harassment when dealing with employees, customers and/or suppliers will not be tolerated and the offender will be subject to severe disciplinary action, including possible termination of employment.

…

Harassment is any inappropriate conduct which has the purpose or effect of:

•  Creating an intimidating, hostile, or offensive work environment; or …

The respondent submitted that, on the central issue as to the validity of the reason, it is “relatively straightforward” and there is a sufficient connection or nexus with the employment in this regard and the respondent had actual knowledge of an employee who did find the video offensive and it did impact certainly on her workplace.

[97] The respondent submitted that the letter advising of the termination of employment referenced the earlier correspondence of 19 July 2017 and 1 August 2017 with respect to the applicant’s conduct in sending the material to employees; and the applicant was dismissed for serious and wilful misconduct, albeit with a payment in lieu of notice. Viewed from the perspective of the respondent, the dismissal was sound, defensible or well founded. In this respect, the respondent referred to a number of cases including DP World Sydney Limited v Lambley [2012] FWAFB 4810 at [26] and, more particularly, to comments at [34]-[36] in Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033.

[98] The applicant propounded the argument that the relevant factor here as to the complete absence of a valid reason for the dismissal was that the video was sent by Messenger to 19 employees who were Facebook friends. I do not accept the proposition that the respondent could not have, and did not have, a valid reason for dismissal because the video was disseminated by the applicant using the medium of Messenger during his non-work time (and in this regard, it may be noted, in passing, that the respondent has 24 hour operations and the message sent by Messenger might, for instance be received during working hours and seen during, for example, an employee’s work breaks). Where there is a relevant nexus or “connection” between the out of hours conduct and the interests of the employer (with those interests promulgated in the policies and code) an employer is warranted in conducting an investigation into those matters. That is what the respondent, responsibly, endeavoured to do. The sending of that video, the evidence establishes, had the potential to feed into the employment considered in terms of the respondent’s policies and code. The out of hours conduct by the applicant had a relevant nexus or connection with the employment relationship and that can be, and was, relied upon by the respondent.

[99] I am not satisfied that the breach of company policy has strictly been made out, because it is not expressed to refer to out of work conduct. However, the applicant’s conduct was contrary to what underpinned the respondent’s policies when read in a purposive fashion, and the more broadly-cast code instructs that the respondent does not tolerate sexual harassment in any form - a type of zero tolerance approach - and those matters were, essentially, the focus of Ms Mihalopoulos’s evidence. In MM Cables (A Division of Metal Manufacturers) v Zammit [Print S8106] a Full Bench of the Australian Industrial Relations Commission said (at 42) of the precursor provision to s.387(a) of the Fair Work Act that “the Commission is obliged to consider whether there was a valid reason for the termination - that inquiry is not limited to the reason given by the employer for the termination”. The respondent submitted the applicant had engaged in “pretending to be ignorant” of what he was being accused. Given the evidence that has now unfolded in the case, much of it extracted only as a result of orders for production or arising from cross-examination, I also consider that the applicant dissembled in relation to his response to the respondent that he at a loss as to the context of these allegations, and deeply shocked and upset to be accused of such conduct; and, as to the response he provided in such respects, I am disinclined to accept his explanation that he thought sexual harassment was limited only to matters such as groping given that in cross-examination the applicant acknowledged that he had read and understood those parts of the policies and code to which he was taken in that examination. The behavioural standards that the respondent expected of its employees, as reflected in its policies and code, could not realistically be isolated because of the fact that the pornographic video was sent by the applicant by Messenger out of hours, any more than if, for example, a racially-vilifying video were similarly sent as a “joke” to members of the respondent’s workforce.

[100] The submissions for the applicant were that the content of the video was, for example, short in duration and not of the worst type of material of this nature. The applicant thought of the video a joke (as did a number of his Facebook friends, albeit others were offended); he described it as “soft pornographic”. The female employee described it as “this shit” to the applicant, and separately conveyed her own characterisation of it to Ms Mihalopoulos - which I have not reproduced in this decision but which I have noted in terms of differing views about its content. As to Ms Mihalopoulos’s characterisation, the video was “both disrespectful and disturbing in its content in that it depicts a naked female in a box and graphic content of masturbation”. Reasonable minds can differ about such matters and their characterisations, but the applicant realises now (as he might reasonably have considered, given the training he had received in his employment with the respondent) that it had the potential to offend. As it transpired, the video was unwelcome and did offend some recipients, relevantly including a female employee of the respondent, and could objectively and reasonably have been considered to be offensive.

[101] I am satisfied there was a valid reason related to the applicant’s conduct in sending the video to 19 work colleagues, relevantly including three female employees (albeit it appears from the given names of the employees who actually received the video from the applicant that the number of female recipients was in fact more than three and, as to this, I should also note that there should not be gendered assumptions about the recipients of the video). I am not dissuaded from reaching that conclusion by the submissions for the applicant that the means of effecting that communication was Messenger. The medium by which the video was sent by the applicant to the employees of the respondent matters no more in this case than in other such cases I have listed earlier involving, for example, social media and the use of non-work facilities or the like. (The question of whether the dismissal was harsh, unjust or unreasonable, of course, arises as a question separate from whether there was a valid reason.)

[102] The respondent submitted that in Ms Mihalopoulos writing to the applicant on 1 August 2017 that “We have an obligation to act upon sexual harassment in the workplace. Sexual harassment is illegal” was, no more and no less, a statement of fact; those comments do not put an allegation and it is to be remembered that the respondent was giving the applicant an opportunity to respond and the “guts of the allegation” was “The allegation against you is that you sent or caused to be sent or posted matters on social media that were received by a number of employees. A number of employees who received the offending communication were female.”; and then referred to the offensiveness. That correspondence further advised that “The purpose of this email is to advise you of the allegation of serious and wilful misconduct”. The subsequent correspondence advising of the termination of employment, in turn, referred to a finding of serious and wilful misconduct.

[103] While it may or may not be the case that what occurred would constitute unlawful sexual harassment within the specifics of a statute-considered framework (as the respondent appeared to contend in some of its communications) - and as I have noted earlier, it would not be jurisdictionally apposite for me to purport to pass upon such matters - here the respondent had provided induction to the applicant concerning matters related to bullying, harassment and standards of expected conduct; and here the applicant misconducted himself by disseminating a pornographic video to employees, contrary to those expected standards.

Whether the person was notified of that reason

[104] The applicant was advised of the reason for the dismissal in the dismissal letter from Ms Mihalopoulos of 3 August 2017 advising of his termination of employment. That letter also cross-referenced earlier correspondence.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[105] The applicant was given an opportunity to respond to any reason related to his conduct. Despite the submissions for the applicant, this was not an unreasonably short period to respond there was no insufficiency of detail or explanation when the applicant knew full well that he sent the video. I have already in this decision indicated that I accepted the evidence of Ms Mihalopoulos that she had reinforced the time stipulation concerning the response.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[106] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present in any discussions relating to the dismissal; the respondent noted the applicant could have a support person in any such discussion albeit while expressing concern about what it considered may involve a potential conflict of interests in relation to the MUA. Because of the way matters unfolded following the failure to provide a response by the stipulated time concerning the allegations set out in the correspondence of 1 August 2017, and the dismissal that was then effected, no meeting eventuated.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[107] The dismissal in this case did not relate to unsatisfactory performance and so the question of performance-related warning is not relevant.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[108] The respondent employs a large number of employees and has in-house human resource management personnel.

Any other matters that the Commission considers relevant.

[109] While there is some repetition in what follows, here in the consideration of any other matters the Commission considers relevant, I have particularly considered the submissions for the applicant which were to the effect that the matter of the video sent by the applicant to his Facebook friends who were also employees of the respondent, and who had self-selected to be the applicant’s Facebook friend, involved a transgression by the respondent into the applicant’s non-work life and in relation to which matters which were not within its remit to have any involvement and in relation to which it had no proper role in “policing”; and it is not for the employer to regulate the appropriateness of communications between employees and their Facebook friends outside the workplace. The applicant submitted that, applying the approach in Rose and in other cases that adopted that approach in that case, whilst this respondent is entitled to control what is displayed in the workplace, it has no right to regulate the applicant’s consumption or sharing of pornographic material amongst his Facebook friends outside work hours: that, the applicant submitted, is the fundamental proposition that informs this case. As to anything that might be regarded as a lack of candour that is to be considered in the context of whether the conduct concerning the video was something that fell within the scope of the respondent’s remit, because if the respondent really had no business in subjecting the applicant to disciplinary process it cannot complain that the applicant did not respond immediately with chapter and verse about matters that had occurred on his own time in his private life; and a similar submission was made with respect to reinstatement. In that regard, the submissions for the applicant “embraced” the comments and reasoning in Keenan at [110] as to employer questioning what the applicant described as matters of a private nature concerning a person’s private communications.

[110] Here the applicant and the employees to whom he individually sent the video by Messenger were Facebook friends. In this regard, the submissions for the respondent noted, perhaps a little colourfully, that the evidence did not lend itself to the conclusion that the Facebook friends, relevantly as to the 19 employees of the respondent, were an acquiescent “group of individuals who had somehow participated in some cabal of exchanging porn”. This was in circumstances where the applicant sent material which did impinge on the employment relationship – for it involved conduct of a type the respondent had promulgated its policies and code, and which the applicant read and understood. So far as Ms Mihalopoulos knew, it was a matter of discussion and disquiet at the workplace, at least so far as some employees were concerned, that this has occurred.

[111] This is not a case of an employer seeking to intrude too far into the private lives of employees or to attempting to exercise supervision over the private activities of employees. The respondent was not attempting to regulate the appropriateness of an employee’s private use of social media; it was trying to respond to what was understood to be the dissemination of pornography to employees - and that considered against the background of concern arising in the context of the matters it was endeavouring to convey as to its values and approach to matters addressed in its policies and code, including potential sexual harassment of female employees. The material sent to employees by the applicant through the use of Messenger as out-of-hours conduct had the likely effect of presenting spillage or potential spillage into the workplace – where the employees would then work cheek-by-jowl together – and this in circumstances where they have received induction and instruction as to the values and culture that the respondent was endeavouring to engender.

[112] As it transpires, based on the evidence, in this case sending the video did in fact spill into and impact upon the workplace. As best as can be ascertained, the applicant knew other employees were not happy and, in consequence, had contacted the union; the union contacted the applicant about the matter, and the applicant was informed that it was inappropriate; the respondent learned of the matter of a pornographic video; Ms Mihalopoulos was informed by employees that the applicant was the subject of a disciplinary sanction in the form of a ban (although I have dealt with the evidence as to that); Ms Mihalopoulos was concerned about sexual harassment of female employees including in the context of duty of care, management of risk to employees and the range of other matters identified in her evidence.

[113] As to another matter that arose in the applicant’s case as being of relevance, I was not persuaded by that part of the applicant’s case that seemed to suggest that matters should be considered in the context that the women who received the material were, it is common ground, variously “forthright”, “strong”, “assertive” and “articulate” individuals. As Black CJ and Tamberlin J in Trainor noted at [51]:

“Care should be taken to avoid the introduction of the notion of ‘normal fortitude’ into discrimination law and particularly into the law relating to sexual harassment. It is a potentially dangerous irrelevancy in this context, readily capable of misuse in support of the false idea – perhaps hinted at rather than stated bluntly – that some degree of sexual harassment (or some other form of unlawful discrimination) would and should be accepted by persons of normal fortitude. With respect to sexual harassment the true and only standard is that prescribed by the statutory definition.”

To respectfully borrow from what was said by Black CJ and Tamberlin J, it is an “irrelevancy” that the employees to whom the applicant sent the video are, it was common ground, forthright, strong, assertive and articulate women - and that matter does not, thereby, assist the applicant’s case.

[114] Significantly and, I would think, quite appropriately given the types of matters described in the quote above from Trainor, the case for the respondent was advanced in terms of appropriate standards, an employer’s duty of care and the like. As Ms Mihalopoulos noted in cross-examination, as to her reference in the letter to the three female employees to the obligation to investigate matters that had come to the respondent’s attention, that “It’s part of our duty of care, whether it’s in the policy or not.  … the policy doesn’t contain all our obligations.” As to the approach described by Ms Mihalopoulos, it is the situation that employers may fall into the error of thinking that a formal complaint or allegation is required before making an enquiry into an issue of conduct such as bullying or harassment - but this is not the case and a failure to act may present risks that might otherwise have been avoided.

[115] The particular female employee in question had plainly conveyed to the applicant her views directly to the applicant and it was the applicant who then apologised and advised that the video was not intended to offend (but as to the matter of intention, see the comments of Bromberg J in Vergara, at paragraph 28 of that judgment, extracted earlier, that “What the person who perpetrated the conduct anticipated or otherwise perceived would be the reaction of the person harassed, is not relevant”). It cannot go unremarked, however, another employee, perhaps a less strong and forthright individual than the three to whom Ms Mihalopoulos wrote, may have felt less secure or potentially vulnerable upon the unwelcome receipt of offensive material of this nature and then would have the prospect of attending and interacting at work. As Ms Mihalopoulos also noted in her cross-examination “they don’t unsee things when they swipe in at the turnstile and they have to work in close proximity to individuals that may have offended them outside of work”.

[116] I have noted, and am not unsympathetic to applicant in connection with, that part of the applicant’s evidence where he explained: “Well, first and foremost, I want to clear my name.  I don’t want this hanging over me as being a sexual harasser. I never harassed anyone. But I also want my job back …”. I accept that the applicant considered the video to be a joke, and it was not intended by him to cause offence. I have considered the fact of the applicant’s apology to the employee who had communicated her own views to the applicant by Messenger, that the applicant also posted an apology on his Facebook page the following day and “there is at least a substantial question about its connection with the workplace” - and that against considerations such as these the dismissal was harsh, in circumstances where, the applicant submitted, disciplinary action falling short of dismissal would have been appropriate. It is not difficult to accept, however, that it was open to the respondent to reach the conclusions set out in the correspondence of 1 August 2017 as to the allegations and to form the view that the applicant should have made “a full disclosure” as referred to within that letter. Steps well-short of dismissal by the respondent (or an order for an unfair dismissal remedy in the applicant’s favour) may well have been appropriate if it was the case that the applicant had, for example, acknowledged to the respondent that he had sent the video but had also explained his prompt steps to apologise directly to a female employee by Messenger and to apologise more broadly through his Facebook post.

[117] It is relevant to set out some of the evidence that was given by Mr Smith in cross-examination. As to the applicant’s Facebook apology, Ms Smith commented in his evidence:

… you know don't you that your member did, in fact, put out a communication which could be described as him being remorseful.  You know that, don't you?---Yes.  No, I do know that and I think that’s a reasonable proposition.  I mean, social media is problematic.  It is problematic right throughout our industry.  It is problematic within our union and it is problematic within companies.  It’s a very difficult thing and the trouble is that, you know, people go and have a drink and are otherwise affected that may not put them in the most, you know, state of greatest clarity so to speak and make poor decisions, and I think it’s a case of that.  And you know, I suppose the effects of that intoxication or whatever wears off and people go, “I pulled the wrong rein there.”  You know, “It was a silly thing to do.” …

[118] Mr Smith’s further evidence was:

Just pausing there, when my client wrote that letter, that was true, was it not?  He was aware of the offensive nature and he had expressed sorrow for his actions?---Well, I am not sure that is correct.  I am not sure he was aware and, I mean, that’s a significant subjective, I suppose, philosophical and moral question over how people view certain types of material.  I agree that there are certain social standards that have sort of - setting a broader position for people to adhere to, but there is still doubt about the way these things are expressed and it’s all right to have big code of conduct books, but no one gets to - they get thrown at people, they get put in lockers.  ...

[119] It was put to Mr Smith that, following Ms Mihalopoulos’s correspondence of 1 August 2017, it would have been opportune for the applicant immediately to tell the respondent about his mistake and his remorse, Mr Smith’s evidence was that he did not consider that the applicant’s remorse could be doubted and, otherwise, letters of the type sent by Ms Mihalopoulos “are used to set up a path to termination for people”. Mr Smith considers that it would have been “incredibly unwise” for the applicant to adopt that approach as he could “almost guarantee” given that it is “just the way the company works” that the immediate response would have been, as things transpired in any event, dismissal. Mr Smith was firmly of the view that matters of this nature need to be dealt with by people who are familiar with the industrial relations framework and environment.

[120] The following are extracts of Mr Smith’s evidence as to the transmission of pornographic material, including to female employees, in circumstances where the respondent and the MUA’s collaborative approach in initiatives to creating a female-friendly environment in a male-dominated industry:

Something that your union ascribes to, a female friendly environment?---Okay. 

And if people were to be sent pornographic videos by whatever means, that's not something which creates a friendly work environment, is it?---At work, no.  But I don't think this is a question of Mr Colwell doing this at work, and I think there is a significant differentiation on that basis, and I don’t think the impact is on the workforce.  … Many of the women at Hutchisons are very forthright and good – that’s a good thing, and they, as you’ve - you know, as has been indicated, they pulled him up and said it’s not acceptable.  I don’t think Mr Colwell seen it as a sexual harassment.  It was a silly mistake on the drink, really, for which he was remorseful and suffered, I suppose, the criticisms of his colleagues as a consequence.

…

Okay.  Did the union pull him up as well?---I think it would have been made very clear from the branch, and I am certain that it was that it’s not a form of behaviour that we would support or think is acceptable, and people need to be very careful especially what they do on the drink or intoxicated in any way.  There’s - as I said, social media is a new playing field to disaster for all of us in so many areas and there are so many ramifications from it that are new, and we are very careful and very clear about telling you this that, you know, in work-related time and space and machines and company property, you don’t do that.  You don’t behave in that fashion.  So it is again consistent with our position, absolutely, but I don’t think it was a work-related thing.  I think that’s where the crossover is here, that it’s not work-related.

[121] In this respect, Mr Smith may well be correct in his assessment that the applicant did not view what occurred as sexual harassment and that “it was a silly mistake on the drink, really, for which he was remorseful and suffered … the criticisms of his colleagues as a consequence” and, separately, also had been informed by MUA officials that this was inappropriate or not considered acceptable. Mr Smith is correct, I think, to note some of the difficulties presented by private social media use in the employment context because it can be a difficult area in the employment context. In that regard, for example, and noting the approach in Bowker, the happenstance of when an employee sent or posted something using social media (such as after hours) does not necessarily mean that it would not be opened or viewed by the employee recipient within working hours; it may be that the traditional approaches in the authorities concerning out-of-hours conduct may not necessarily always be apposite in the case of social media usage. I also observe, in passing, that there is at least a slight contradictory tension in the case advanced by the MUA, which represented the applicant though counsel in these proceedings, on behalf of the applicant in such respects. For instance, the applicant’s evidence was that he knew a lot of MUA members were not happy about the video; he assumed some of them must have contacted the union and that was why he was not surprised to receive the telephone call from Mr McAleer around 10 July 2017. In that conversation, on the applicant’s evidence, Mr McAleer advised the applicant that in his opinion sending the video was inappropriate. Moreover, Mr Smith said he thought it would have been made very clear from the local branch, and he was certain that it was, that it is not a form of behaviour that the MUA would support or think is acceptable as between its own members who were employees of the respondent. These matters notwithstanding, the case for the applicant did not appear to countenance that the respondent could equally or legitimately have a view that, as between its own employees, sending the video would be inappropriate or acceptable.

[122] As the submissions for the respondent noted, the correspondence from Ms Mihalopoulos of 1 August 2017 “by joining the dots” for the applicant, all but invited the applicant to acknowledge, as Ms Mihalopoulos understood to have occurred, that he had indicated genuine remorsefulness – and “to get credit for it” in any decision-making by the respondent concerning the matter. Contrary to the views expressed by Mr Smith that dismissal would have been an inevitability if the applicant had acknowledged sending the video (and, in effect that he would advised the applicant not to make any admissions), it may be the case that things may well have unfolded differently if matters had been put by the applicant or his union, or both, with admissions and explanation - for there was significant mitigating conduct here as a result of matters including the prompt apologies, and other considerations arise such as the blurry line concerning private social media and the workplace (and, I might add, in circumstances where the respondent does not have a discrete social media policy albeit the code more broadly addresses that potential lacuna).

[123] Regrettably, instead, the respondent was left with a situation where the applicant initially effectively feigned ignorance of matters by responding that he was at a loss as to the context of the allegations, and shocked and upset by them (being a response of a type considered in Streeter v Telstra Corporation Limited [2008] AIRCFB 15, albeit there is some controversy about the correctness of certain aspects of the majority decision in that case); and Ms Mihalopoulos’s concerns about sexual harassment of female employees were infused by a concern about an MUA cover-up in circumstances where she expected a collaborative approach from the MUA to address matters such as sexual harassment. Even if the disciplinary “ban” was not made out, there may have been at least some level of, for the want of a better description, reproach involved in Mr McAleer’s telephoning the applicant about the matter and also raising with the applicant applying for leave - but the state of the evidence is not such as to allow any finding in such respects other than, as I have noted, the evidence does not support the conclusion as to a disciplinary sanction had been imposed by the MUA. As to what may have occurred if a collaborative approach had been adopted, I again note that Mr McAleer had informed the applicant that in his opinion what had occurred was inappropriate and Mr Smith was of the understanding that the local branch of the MUA had made it very clear to the applicant that it was not a form of behaviour that the union would support or think is acceptable. Here, the MUA and the respondent were, thereby, at one on their respective views about the applicant sending a pornographic video to the employees; and the commonality of the view might reasonably have been expected to lend itself to a collaborative approach and, indeed, some form of suitable resolution as to what might have resulted. Admission and explanation of exculpatory matters may well have been a better approach and steps short of dismissal may well have been the result - rather than obfuscation that in fact occurred.

[124] I would add that if the range of matters now relied on in these proceedings had contemporaneously been communicated to the respondent, and a dismissal nonetheless been effected, the applicant would have had a strongly arguable case for intervention in any ensuing decision to dismiss. So much effectively was acknowledged even in the respondent’s own case in as much as it was submitted: “Had it of been the case that the applicant had through his union put its cards on the table and argued that this was not connected with the workplace and had my client in the face of that gone in the direction that it did, it may raise issues as to harshness”. However, the approach of the respondent was that as the applicant had not “come clean” and “explain what he did, knowing full well what he had done” there was “disentitling conduct” in relation to a finding of harshness.

Conclusion

[125] The applicant was informed personally, and this was reiterated to Mr Smith, of the requirement to provide a written response by 3 August 2017. The applicant did not, acting on advice, provide a response. All that Ms Mihalopoulos received was correspondence from Mr McAleer advising that the applicant had “already responded” and that a response to Ms Mihalopoulos’s correspondence of 1 August 2017 “will not be forthcoming until such time as you can provide evidence that corroborates your allegations”; and seeking an immediate retraction or “a detailed outline of the allegations and evidence to back them up for your attack on Luke Cowell”. Ms Mihalopoulos advised the applicant in the letter of the dismissal that: “I believe in the circumstances, you have had an opportunity to respond” and “I am not prepared to permit you to return to the company and I wish to advise you that I have made a finding of serious and wilful misconduct including breach of company policy”. All things evaluated, I consider, particularly given what may be compendiously described as the reasonably-based view of the respondent that the applicant had sent a pornographic video and that he effectively was being disingenuous about the matters the respondent raised concerning the video involving a lack of candour, I am not satisfied there is cause to conclude that the dismissal of the applicant was harsh, or unjust, or unreasonable.

[126] Even if I had found that the dismissal was, for example, harsh, considering the matters of self-initiated prompt apology and other matters that were advanced in the applicant’s case, reinstatement would not be an appropriate remedy given my acceptance of the evidence of Ms Mihalopoulos, being evidence on which, I note, she was not cross-examined. That is, Ms Mihalopoulos considers there was no attempt on the part of the applicant to be open and honest about what had transpired – which has led her to the conclusion that she has no trust and confidence in the applicant as an employee. The respondent submitted the evidence of loss of trust and confidence in the applicant is for good reason, as elaborated in its submissions. My acceptance of the evidence and submissions in such respects would have militated against any order involving a return to work had I found that the applicant had been unfairly dismissed.

[127] An order dismissing the application will issue with this decision.

COMMISSIONER

L Doust of counsel for the applicant.

P Brown, solicitor, for the respondent.

Hearing details:

2017.

Sydney:

December 8, 18.

Final written submissions:

Applicant, 8 January 2018.

Printed by authority of the Commonwealth Government Printer

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