A recent Fair Work Commission decision to uphold the dismissal of an employee for sending threatening text messages and making statements of a sexually harassing nature has shone a light on issues surrounding compliance of employees with the company code of conduct provisions.
Toll Transport terminated an employee for sexually harassment including the sending of text messages to a colleague calling him his “bitch“, “toy boy” and threatened to “molest him” and “squeeze his testicles until it made him cry” but the employee questioned the reasonableness of the decision and submitted an unfair dismissal claim to the Fair Work Commission.
Circumstances of the dismissal
In the complex case, Mr Anthony Clarke Vs Toll Transport  FWC 606, the employee, a 63-year-old male pick up and delivery driver made a range of verbal statements and sent the text messages following an altercation with a 37-year-old forklift driver who was seeking the older man to advance him money through loans and gifts.
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The younger man had made a complaint to the management that included:
April 27 (Friday) 7:00 pm – 7:15 pm when I was having dinner in the lunchroom next to the drink machine, Tony came next to me and sat next to me while I was having dinner he suddenly started to rub my arms and legs while I was eating in the lunchroom, then he took of and went home.
Then May 1 (Tuesday) 7:00 pm when I was having dinner in the lunchroom, Tony came sat next to me and started to rub my head, arm and back then he walks away.
May 2 (Wednesday) I text Tony and said no more rubbing…but he didn’t get the point.
May 13 Sunday 2:35 pm
He told me next time I molest you will put my hand on your little balls and squeeze them until you cry…
However, the commission was provided with evidence suggesting that the complainant had for some time, engaged with the older man.
Later the 63-year-old man sent messages to resist the request for money included phrases “For fucks sake you little bitch. Stop trying to fleece me…. not your milking cow… no moo moo. Next time I molest you, you will put my hand on your little balls and squeeze them till you cry…”.
Following the messages, the younger man complained to the management of Toll who launched an investigation into the circumstances. Its investigation concluded that the messages were inappropriate, offensive, vulgar and of a sexual nature. This was deemed to be a contravention of the company’s Code of Practice.
Toll made the decision to terminate the employee on the weight of evidence however at the Fair Work Commission hearing Toll was not able to conclusively prove that 63-year-old man was provided with the code of conduct documentation.
The Fair Work Commission decision
Commissioner Hunt concluded that although the younger forklift driver may having found the text messages acceptable initially, the declarations of love made by the 63-year-old man and his aggressive text messaging was plainly inappropriate.
“Many of the text messages sent by (Older man – deleted) to (Younger man) are inappropriate due to the sexual statements and declarations of love to a work colleague, where no such mutual relationship of love existed. Further, the reference to molestation is inappropriate. I am satisfied they breach the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy and were not welcomed by the younger man (name deleted).
In the evidence before the Commission, I cannot be satisfied that the Toll Code of Practice was issued to (name deleted). However (name deleted) had been trained in the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy. I agree with Toll’s submission that it need not only be a breach of company policies and procedures to warrant a valid dismissal; if Toll did not have policies, the conduct could be regarded as inappropriate.”
The commissioner found that the dismissal was, although procedurally deficient, not unfair in the circumstances.
Commissioner Hunt placed relevance on the fact that some of the threatening text messages were communicated within workplace hours and some were communicated outside of the work hours. Noting that the crossing of boundaries with work colleagues should not be extended to outside work hours. Acceptable conduct may extend to within and outside of work hours.
Why does this case really matter?
The case highlighted the issues surrounding the boundaries of conduct for employees may extend to outside the work environment. Text messaging work colleagues, even from private phones, must be undertaken respectfully with civility and in good conscious not to harass, embarrass or intimidate others.
If companies have specific policies surrounding expected conduct a dismissal will be likely upheld but it is also true that the absence of policies on conduct may not preclude a valid dismissal if the behaviour has been inappropriate. Clearly, threatening or sexual text messages are inappropriate.
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