It is well established that sexual harassment that occurs out of work hours and out of work premises can sometimes be sufficiently connected to the workplace, to be deemed workplace sexual harassment. The consequence will be that an employer can be liable for sexual harassment that occurs, but also that they will have rights (and duties) to discipline employees who have behaved inappropriately.
The question of what out-of-hours conduct will be deemed to be sufficiently connected to the workplace to justify an employer taking disciplinary action against an employee is a considerably grey area. This is a particularly pressing matter for employers to consider where employees are fond of attending out of work events and get-togethers.
The Fair Work Commission (‘FWC’) has recently made their position on this area clearer in the case of John Keron v Westpac Banking Corporation  FWC 221. In this case, the FWC upheld the fairness of an employer’s decision to terminate the employment of a long-standing manager after he had engaged in inappropriate conduct at drinks that occurred after a work event and took place out of work hours.
In this case, the employees had attended a training event, which was then followed on by an optional networking session in a bar where the business supplied free drinks for two hours. Afterwards, the employees had opted to stay on at the venue and continue socialising, purchasing their own drinks for the remainder of the night. This is when the reported incident took place, where a manager at Westpac, inappropriately touched a female colleague without her consent.
Following the event, the business investigated the incident which involved reviewing CCTV footage and having telephone interviews with other employees who had been in attendance. Westpac ultimately came to the decision to terminate the manager for breaching Westpac’s Sexual Harassment Policy. The employee was also charged for indecent assault by police.
Despite the investigation and findings, the manager claimed that he was unfairly dismissed by Westpac based on the insufficient connection between the social event and his employment with Westpac, and he also sought to downplay the seriousness of his actions.
Is being intoxicated an excuse for sexual harassment?
In the case, the terminated employee argued that the fact that everyone at the event had consumed alcohol, blurred the line of appropriate boundaries, and the female’s own behaviour (which included patting the manager on the back and shoulder), implied that she consented to the physical interaction that took place.
He believed his actions were not “unwanted, unreasonable, uninvited or unwelcome” and they did not, therefore, breach Westpac’s Sexual Harassment Policy.
The FWC unambiguously stated that alcohol does not excuse inappropriately touching another person without their consent outlining that “the bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the community” and an “even higher bar has been set for interactions occurring in work-related environments.”
Were the incidents sufficiently related to the manager’s employment to justify dismissal?
The dismissed employee also argued that the event occurred out of work hours, on employees’ own time and that he had no direct working relationship with the female employee in question. Accordingly, he said, Westpac was not entitled to take disciplinary action against him for something not connected with his employment.
The FWC agreed that the harassment occurred after the conclusion of the work-sponsored social event (which was itself non-compulsory to attend), and that the employees had stayed on at the venue after this time as a matter of their own choice, and had purchased their own drinks. They also found that there was no clear signage to link Westpac to the venue where the incidents occurred.
However, the FWC still considered that there was a sufficient link between the conduct and the employee’s employment, which meant that incidents were still covered by workplace policies and codes of conduct. The FWC found that given the group had no specific connection outside of their employment and were only socialising together and at that location due to the compulsory training they had attended – that this was sufficient to establish a link to their employment.
The FWC concluded that although the events “occurred on the border between a work-related event and private activities” they were still sufficiently associated with their employment to warrant the employee’s dismissal for inappropriate behaviour.
Lessons for employers
Make sure that your policies regarding conduct at work and work-related events are up to date and fit for purpose. Westpac was greatly assisted in this case by having a clear Workplace Sexual Harassment Policy.
- Consider the level and appropriateness of alcohol at work-related events.
- Remind employees prior to the event that the usual standards of appropriate workplace behaviour apply.
- Think about appointing (sober) representatives of the Company to supervise appropriate behaviour at the event.
- Consider what employees are likely to do when the work event ends. If you hold an event in a bar where employees will be able to remain after the work event has ended, be aware that employees may well wish to stay back for further drinks. This still may be sufficiently connected to their employment to mean that you have responsibilities for their conduct.
- Think about organising transport for employees at the end of the work event, or taking other steps to ensure they leave safely when the event is finished.
If this is an area you may need assistance on, please reach out to the HR Connect team!
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HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.