The Case

(2018)

Mr Colwell was an employee of Sydney International Container Terminals Pty Limited (SICT). During a rostered week off, Mr Colwell got very drunk. When he received a sexually explicit video from a friend, he sent the video by Facebook Messenger to 20 friends, nineteen of which were work colleagues and three of which were female. The next day Mr Colwell posted an apology on Facebook.

SICT had policies about sexual harassment in the workplace but no social media policy, plus it encouraged women to become part of its workforce and was active in protecting the interests of women.

Approximately 2 weeks later, SICT’s General Manager – Human Resources and Industrial Relations became aware of the video from discussions with some employees, but no one formally complained to SICT about the video. SICT interviewed Mr Colwell and gave him an opportunity to respond. Initially, Mr Colwell did not admit to sending the video or posting the apology. SICT terminated Mr Colwell’s employment for serious misconduct.

Mr Colwell lodged a claim for unfair dismissal to the Fair Work Commission (FWC).

The Verdict

Mr Colwell argued that the dismissal was unfair because:

• no one had made a complaint about the conduct; and
• the conduct occurred outside the workplace.

However, the FWC decided differently, finding the dismissal was not unfair because:

• SICT did not need a formal complaint to investigate issues of harassment, that was part of being a good employer;
• there are often complex reasons why an employee does not raise a complaint;
• most of the employees who received the video would not have been one of Mr Colwell’s Facebook friends, had it not been for their employment with SICT;
• SICT’s policies covered this type of conduct including if employees engaged in it outside the workplace with other staff; and
• Mr Colwell had initially lied about circulating the video and posting the apology – had he admitted to the conduct earlier and provided an apology, less serious consequences may have been appropriate.

The Lessons

Do not wait for a formal complaint before investigating inappropriate conduct. Even if there is a complaint and an employee does not wish to proceed, the employer must investigate. Additionally, once an employer has information that inappropriate conduct is suspected of having occurred, it must investigate.

Conduct which occurs outside work that has a sufficient connection with the workplace can form a valid basis for an employer to take action. In this instance, the fact that the conduct involved social media and the Facebook friends were work colleagues was sufficient. Some employees had raised the matter with the General Manager – Human Resources and Industrial Relations, without making a formal complaint.

Keep in mind, if an employee admits to the conduct when asked and provides an apology, the decision to dismiss may be too harsh. As such, employers need to examine the totality of the circumstances before making a disciplinary decision.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.