Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174

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

Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174 | Case summary | Zoe

[42]

[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.

[100]

[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:

[106]

[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:

[113]

[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:

[134]

[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.

[135]

[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:

[168]

[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 ; ; ; ; ; ; ; (and see also, as a post script, the Federal Court penalty proceedings in ; ; ; ; ; v ; and . (Cases are also beginning to emerge about social media in other contexts, such as "unfriending" on Facebook in the context of allegations of bullying: .)

[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:

[182]

[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.

[193]

[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]:

[196]

[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:

[203]

[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.

[204]

[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.

At a glance

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Judgment (205 paragraphs)

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Legislation Cited (5)

Cases Cited (12)

Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174 (9 February 2018)