A recent case in the Fair Work Commission upheld the dismissal of an employee who sent messages with sexual overtones and sent explicitly sexual messages to co-workers.
Sexual harassment in the workplace is currently a prevalent topic. The #MeToo campaign and the Human Rights Commission launch of a year-long harassment inquiry has brought harassment onto the centre stage. A recent case in the Fair Work Commission, Colin Ramon Reguero-Puente v City of Rockingham, considered the misconduct of an employee relating to sexually inappropriate communications with co-workers, and whether employees had to expressly tell someone to stop this conduct for it to constitute misconduct.
In this case Mr Reguero-Puente, an employee of 28 years for the City of Rockingham (City), was dismissed after an investigation substantiated employee complaints of Mr Reguero-Puente making inappropriate comments and sending inappropriate messages.
These comments and messages were made to several less senior, female employees. Examples of the conduct included sending or saying the following:
- “I’ll let you go up the stairs first so I can watch your arse”;
- “I would like to see you in those heels only”;
- “I was waiting for you to come back so I could get a goodbye kiss”; and
- Pictures of Mr Reguero-Puente in his bedroom, reflected in a mirror, wearing only underwear.
If the co-workers did not respond, Mr Reguero-Puente continued to send messages. For example, between 10:01pm on 19 September 2017 and 5:27am on 20 September 2017, Mr Reguero-Puente sent 70 messages to a co-worker without any response.
Mr Reguero-Puente knew these messages were inappropriate as he sent messages such as “can’t let you in all [sic] my secrets. Might need them to go up against you one day … when you have me on sexual harassment”, “no one can know about these messages no matter what” and “please don’t tell anyone about these messages”.
The messages sent by Mr Reguero-Puente also demonstrated he was aware of the seniority differences between him and the women he was messaging, stating, “I’ve always wanted to play … you just didn’t know it … being your boss and all”.
When the City received complaints against Mr Reguero-Puente, he was told to stop the behaviour. However, shortly after Mr Reguero-Puente continued the conduct. He was subsequently suspended on full pay while the complaints were investigated.
The investigation substantiated the complaints and the City decided to summarily dismiss Mr Reguero. Mr Reguero-Puente claimed he was unfairly dismissed because the text messages were reciprocated, and his co-workers had not told him to stop sending the messages.
While some of the women responded to the messages, the Fair Work Commission found they did so only because they felt pressured and were concerned about what would happen if they did not. Some of the recipients gave evidence that Mr Reguero-Puente belittled and was rude to co-workers who asked him to stop messaging them. Other recipients did ask Mr Reguero-Puente to stop, however his behaviour did not change.
The Fair Work Commission emphasised that “young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed toward them in their workplace.”
It was held by the Commission that the views of Mr Reguero-Puente suggested his pattern of behaviour would continue if he returned to the workplace. This was held to justify the dismissal.
The Commission also dismissed Mr Reguero-Puente’s contention that he was dismissed for his mental illness, as no causal link was established between the mental illness and the misconduct or his employment.
The unfair dismissal application was dismissed.
Key issues for employers
This case follows the authority of previous cases that demonstrate an employee does not have to tell a co-worker to stop behaving in a certain way for the behaviours to be misconduct (for example, a touchy co-worker was dismissed for inappropriate touching despite not being told to stop).
Consequently, employers should not dismiss complaints if the complainant went along with the behaviour. All complaints should be taken seriously and investigated appropriately.
Additionally, employers should have clear workplace policies on sexual harassment and inappropriate behaviour and ensure employees are educated on these policies as well as the processes for making a complaint.