Worker said she did not feel able to stop or block him as he held a managerial position, making the situation feel intimidating
A manager with nearly seventeen years of service challenged his dismissal after being accused of sexually harassing a colleague through messages and conduct over several months.
The worker contended his dismissal was harsh, unjust or unreasonable, arguing he sent similar messages to friends and relatives worldwide on social media and did not consider his messages inappropriate at the time of sending them.
The employer maintained that the worker engaged in sexual harassment by sending unwanted messages and making repeated requests for dates to a much younger colleague who was vulnerable as an international student.
Following the dismissal, the employer became aware of further conduct, including incidents at the workplace Christmas party, and additional messages that it submitted supported a finding of valid reason for dismissal.
Employment background and training
The worker commenced employment with the employer in late 2008. He worked in various positions during his employment and was employed as the fruit and veg manager at one of the employer's stores at the time of his dismissal. The worker's role made him the third most senior employee at his store.
The worker completed training on the code of conduct in early 2024. Code of conduct training includes topics like respectful workplace, bullying and sexual harassment. The training is provided by the employer when an employee commences employment, and then refresher courses are provided every one to two years.
A colleague was employed as a part-time team member in the fresh team, was on a student visa and was 29 years old at the relevant time. She was not directly supervised by the worker as part of her day-to-day work. The colleague made a complaint about messages to the store manager, saying that she had been feeling uncomfortable with the worker's behaviour.
Investigation and show cause process
A store manager from a nearby store was appointed by the employer to undertake an investigation. The worker attended an interview with investigators shortly after the complaint. Prior to attending the interview, the worker was not provided with any information regarding the allegations against him, and he was not told of the purpose of the meeting.
At the commencement of the meeting, he was offered a support person. He declined that offer. During the interview, the worker confirmed that he had sent the messages and said that he sends love and kiss messages to his friends and this is normal, there was no "sexual content" involved because he was 63 and the colleague was like a granddaughter to him, and he was just being "friendly" and had a "friendship" with the colleague.
The worker's evidence was that the term 'sexual harassment' was not mentioned at this meeting. He was not shown any written complaint from the colleague, only screenshots of the messages between himself and the colleague. He was asked to confirm if he was the one who sent them.
Show cause letter and dismissal
Shortly after the initial meeting, the employer wrote to the worker asking him to show cause as to why his employment should not be terminated. This correspondence suspended the worker and invited him to provide a response within several days.
The employer's records include notes that record the store manager tried to call the worker repeatedly following the letter.
The worker did not respond to the letter or the store manager's calls. The worker's evidence was that he did not respond to the letter as he "had nothing else to say". Shortly after, the employer summarily dismissed the worker on the basis of the messages he had sent to the colleague.
Worker's evidence and position on conduct
The worker did not deny that he had sent the messages described by the employer. In relation to the Christmas party incident, the worker noted that "the ladies try to come wearing their best", with lovely hairstyles and makeup.
He recalled that he exchanged "not full blast hugs and kisses" with at least seven female colleagues, but "imitation hugs and kisses" at the beginning and end of the night at the Christmas party.
In relation to the colleague specifically, the worker recalled passing her as they were sitting at different tables and saying words to the effect of 'You look lovely tonight' and imitating a kiss on her cheek.
He produced evidence of a group photo, which he recalled being taken at the end of the night, where the colleague was sitting next to him. Effectively, his recollection of the Christmas party was that there was a nice mood amongst colleagues and that nothing out of the ordinary occurred.
In relation to the colleague's evidence that the worker had said that "he would do anything for her", the worker's evidence was that whilst he had made this comment, this was not something exceptional as he made comments like this to "very many of his female colleagues" in response to being asked for assistance, which happened quite frequently. He said that this was just part of a normal working relationship.
In relation to repeated requests for a date, the worker's evidence was that he could not recall whether he approached the colleague in the store and asked her to go out or whether he didn't, but that it was possible that he had asked her.
Worker's submissions about messages and emojis
The worker gave evidence that emojis, including love hearts, thumbs up and hearts with eyes, were regularly used on social media and also used within group chats between staff of the employer. This was regular practice in group chats. The worker gave evidence that he publicly used emojis regularly and made comments on the Facebook pages of his approximately 150 Facebook friends.
His friends also regularly put emoji reactions on his public posts. The worker described his Facebook activity as 'a mutual exchange' that "leads to more understanding between people".
In relation to the comments that he had made regarding the colleague's appearance, such as "beautiful girl" or "I love you", his submission was that these comments did not have any sexual subtext but were either responsive to the colleague's social media content posting her new bags, or her "looking very nice".
In relation to his comments or messages, such as love heart emojis or "I love you", he submitted that this was part of the workplace banter where someone helps a colleague out and should really be understood as akin to an expression of thanks.
The worker was not the colleague's line manager. The worker's evidence was that he and the colleague did not talk too much on the shop floor as they were both busy getting their own work done.
Colleague's evidence about unwelcome conduct
The colleague's evidence was that the worker behaved in a way that made her uncomfortable and upset at the store's Christmas party.
On that occasion, her recollection was that she noticed the worker staring at her from a distance at different times throughout the party, which made her feel a bit uncomfortable.
Later at the party, she was walking through the venue herself, the worker rushed up to her and told her, "You look so beautiful today".
He then grabbed her and kissed her on the cheek. She awkwardly tried to push him off. She felt humiliated. The colleague's evidence was that while she did not recall the exact date the worker added her as a friend on Facebook, he began sending her messages via Facebook Messenger shortly after the Christmas party.
These messages included things like "Beautiful girl", "Can I take you out one day", "Love", "Love you" and images of hearts, lips and two people kissing. These messages were tendered into evidence. The colleague did not respond to them.
Worker's evidence about requests for dates
When the colleague asked the worker for assistance in performing her duties, he responded with "I would do anything for you." This was the only time he said anything in front of other colleagues.
This was in front of two colleagues who then commenced to ask questions of her, expressing curiosity about the worker's behaviour and why he appeared to be "obsessed" with her, including frequently commenting on her Facebook photos.
This made the colleague feel very humiliated. Shortly before the complaint, while the colleague was closing the deli during a shift, the worker asked what time she would be finishing and whether she wanted to go out for a drink with him.
The colleague's evidence was that she was finishing at 8:30 pm, but pretended, for her own safety, that she was finishing later.
The colleague said words to the effect of 'No, I'm not going with you'. The worker then showed the colleague videos of karaoke. She felt that this was an attempt to convince her to go with him.
Manager’s conduct and impact on worker
The colleague's evidence was that even after this interaction, the worker continued to send her messages on Facebook Messenger saying "Love you" and "Do you love me." She did not respond to any of these messages. These messages were tendered into evidence.
The colleague's evidence about the impact that this conduct had had on her included that it was an incredibly difficult decision to come forward and report the worker's conduct. She was concerned about the potential impact on his employment, but she also felt she could no longer tolerate his behaviour towards her.
Additionally, as an international student, she was deeply worried about becoming involved in any legal processes, given the challenges of balancing her studies, maintaining her academic performance, and managing the emotional stress of the situation.
It became increasingly difficult for her to attend work and see him during her shifts. The situation caused her significant anxiety, and she often felt reluctant to come to work. Knowing that he would sometimes message her on Facebook at 2.00 am or 4.00 am made her feel extremely uncomfortable.
Commissioner's findings on conduct of sexual nature
The Commissioner found that sending the messages, the repeated requests for dates and making the statements on appearance constituted "conduct of a sexual nature".
These messages were sent in the context of the worker's unrequited desire to enter into a romantic relationship with the colleague. However, those comments also crossed over into making and expressing judgements about how beautiful the colleague was to him.
Over the course of approximately two weeks, the worker sent messages to the colleague, including comments that the colleague was "beautiful", a "beautiful girl" and offering to "take her out one day".
He made similar comments in the workplace about her appearance. Over the course of three days, he repeatedly sent messages saying "Love", then "Love you" and then "Do you love me".
Various emojis were sent, including one of plump, red lips and two people kissing with a love heart between them.
At one point, the worker also posted an image of a love heart including the words "Be My Valentine" and images of red roses. He posted a message on the colleague's Facebook profile saying "Always love you".
Valid reason for dismissal found
The Commissioner considered that the worker's conduct breached the policy and the code of conduct. The policy applies to conduct in the workplace, at the employer's functions, even if out of hours and when interacting with team members, including over the internet or social media.
The policy closely mirrors the provisions of discrimination legislation and makes clear that harassment and sexual harassment is not acceptable and that breaches of the policy may lead to termination.
Similarly, the worker breached the code of conduct. The code applies to conduct in the workplace, at functions and out of hours if there is a sufficient connection to the workplace.
The worker did not contend that a sufficient connection between his impugned conduct, the colleague and the workplace did not exist.
The Commissioner found that it did, given that the conduct occurred in the workplace, at work functions or over social media. Other colleagues of the worker and the colleague were able to observe the public conduct of the worker on social media.
The Commissioner found that the worker engaged in sexual harassment and that his conduct was serious misconduct.
Procedural fairness considerations
The Commissioner found that the worker was notified of the valid reason relied upon at the time of his dismissal, being the sending of the initial messages.
The show cause letter clearly articulated the reasons relied upon, including the nature of the alleged conduct and the policies of the employer that the worker had been found to have breached.
However, the worker was not notified of the other matters that the Commissioner found to constitute a valid reason for his dismissal.
The Commissioner found, based on the evidence, that the employer was not aware of those matters prior to the worker's dismissal. The Commissioner found that in all the circumstances, the worker was not notified of the reason for his dismissal in explicit, plain and clear terms.
This weighed in favour of a finding that the dismissal was harsh, unjust or unreasonable.
Whilst the Commissioner considered that the worker was given an opportunity to respond to the allegations and findings regarding the initial messages and his possible dismissal by reason of the show cause letter, the Commissioner found that he was not given an opportunity to respond to all of the reasons for his dismissal prior to the decision to dismiss being made.
This was, self-evidently, as the employer was not aware of many of the matters that the Commissioner found to constitute a valid reason for his dismissal. This weighed in favour of a finding that the dismissal was harsh, unjust or unreasonable.
Dismissal not harsh, unjust or unreasonable
The Commissioner found there was a valid reason for the dismissal of the worker. The Commissioner considered the gravity of the worker's misconduct and weighed this against all of the other factors, circumstances and relevant matters applying to his dismissal.
These included that he was not notified of the valid reason for the dismissal nor given a proper opportunity to respond to the valid reason, together with his age and the length and quality of his service.
In the Commissioner's view, the gravity of the worker's misconduct outweighed these matters. Other factors were largely neutral. Having considered each of the matters specified in the Act, for the reasons given above, the Commissioner was satisfied that the dismissal of the worker was not harsh, unjust or unreasonable.
The Commissioner was therefore not satisfied that the worker was unfairly dismissed within the meaning of the Act. The application was dismissed.
