Employee Discussing Sex Life Amounted to Workplace Sexual Harassment

The Fair Work Commission has upheld the dismissal of an employee for workplace sexual harassment and a failure to communicate respectfully with employees.

The employee worked in a large timber mill with over 200 employees as a maintenance electrician. The employer received multiple complaints from other employees reporting that the employee was discussing his sex life with other employees, showing photos of people he had sexual relations with and was approaching several female employees for a date.

After the employer conducted a show cause meeting, the employee was terminated for serious misconduct.

In considering the legal definition of ‘sexually harass’ Commissioner McKinnon found that:

• By initiating conversation about sexual activity, making statements of as sexual nature, sharing images of a sexual nature and making enquiries about the private lives of others, the employee had engaged in conduct of a sexual nature; and
• the conduct of the employee was unwelcome to the complainants and that a reasonable person would have anticipated the possibility that each of the complainants would be offended, humiliated or intimidated and that the other employees had been sexually harassed by the employee.

Although the employer’s process, was not perfect, the Commissioner found the dismissal to be fair and dismissed the Unfair Dismissal Application.

(Swift v Highland Pine Products Pty Ltd [2023] FWC 1997.)

This case is a great example of an employer complying with their proactive obligations at law to remove sexual harassment from the workplace.