Texting inappropriate messages outside of work hours still constitutes sexual harassment

Sexual harassment remains an important point of discussion in our workplaces. The #MeToo campaign continues and the Australian Human Rights Commission will be conducting the year-long National Inquiry into Sexual Harassment in Australian Workplaces. We continue to see cases from the relevant courts and tribunals set out clear expectations in relation to behaviour in the workplace.

One example is the recent case of Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148 below.

Facts

Mr Reguero-Puente was a building coordinator at the City of Rockingham Council with 30 years of service. He was dismissed after an independent investigator substantiated 19 allegations of misconduct. These allegations included that he had:

• sent up to 70 messages in one night to a 23-year-old colleague, allegedly also texting photos of his genitals and of him wearing only underwear
• sent text messages to a colleague in which he said he had ‘checked the EBA’ and, as he was not on the clock, his behaviour didn’t matter and that he had ‘always wanted to play. . . you just didn’t know it. . . being your ‘boss’ and all’
• subjected junior colleagues to numerous inappropriate comments and text messages during and after working hours, allegedly telling one: ‘I’ll let you go up the stairs first, so I can watch your arse’
• failed to cease sending inappropriate messages when asked by one his colleagues and after being provided with a formal warning by the Council.

Decision

Following the completion of the investigation into the allegation the Council summarily dismissed Mr Reguero-Puente.

Mr Reguero-Puente made application to the Fair Work Commission alleging he was unfairly dismissed because:

• the text messages he sent were welcomed and reciprocated
• the other allegations against him could not be substantiated because there were no witnesses to the events
• the behaviour for which he was dismissed was a consequence of mental illness triggered by his workload at the Council and his treatment at the hands of other Council employees
• the disciplinary action, and its impact on him, was disproportionate to the gravity of the misconduct.

The Fair Work Commission rejected Mr Reguero-Puente’s application and found that the Council had a valid reason to dismiss Mr Reguero-Puente noting that:

• the key pillar of Mr Reguero-Puente’s defence was not that he did not do what he is alleged to have done, but rather that the women should have told him to stop
• some of the women gave evidence that they did in fact ask him to stop and it made no difference
• others clearly tried to curtail conversations that Mr Reguero-Puente was trying to lead in an inappropriate direction, but, to the extent that they did participate in the conversations, they felt they had little choice given Mr Reguero-Puente’s seniority and his behaviour in the workplace
• the women could reasonably have perceived that Mr Reguero-Puente was in a position that was more senior to them
• Mr Reguero-Puente was expressly warned that his conduct was inappropriate, and, notwithstanding this, he continued to behave inappropriately.

In making her decision, Deputy President Binet observed that, ‘in this day and age, 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’.

The Deputy President also concluded that the Council had acted reasonably in dismissing Mr Reguero-Puente. He had been provided with an opportunity to respond to the allegations before his dismissal and had refused.