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Is sexual harassment a
good reason for an airline to dismiss a flight crew member?
‘Sharing’ sexually explicit photos and sexy texts on a
mobile phone with work colleagues is new way to cause sexual
harassment in the workplace.
In Fair Work Commission decision [2016] FWC 7077 (17
October 2016), Commissioner Cloghan considered whether the
showing sexually explicit photos and sexy texts was unwanted
or unwelcome sexual behaviour and was a good reason for an
airline to dismiss a flight crew member. The decision is
relevant to workplaces in general.
The employment history and the
incidents
21 January 2011 – The employee accepted a contract of
employment as a member of the cabin crew. The employee
acknowledged the airline’s Equal Employment Opportunity
policy (EEO Policy), which required the employee to:
- “be…responsible for treating all team
members…customers…with dignity, courtesy and respect…”
and
- “not engage in any form of physical or verbal
contract which a reasonable person would deem to be
unwelcome, offensive, humiliating or intimidating”
including
- “any unwelcome or uninvited behaviour that is sexual
in nature”
February 2011 – The employee was trained in and passed an
exam upon the EEO Policy and the Employee Code of Conduct.
June 2014 – The employee was promoted to Cabin Crew
Supervisor.
May 2014 – The employee and a member of the flight crew
(Witness A) began a consensual sexual relationship on an
overnight stopover in Bali following their first flight
together. The relationship continued for about a year during
which they sent sexually explicit photographs, sexy text
messages and 2 short videos to each other on their mobile
phones.
From May 2014, the employee was responsible for 13
incidents of a sexual nature, including:
- The employee said in a loud voice “I hope you are
clean” to Witness A in the presence of other flight crew
members on the aerobridge, the day after they began
their relationship. This comment was offensive and
humiliating to Witness A.
- The employee showed sexually explicit photos and
sexy text messages received from Witness A to other
flight crew members on several occasions - at the
terminal, pre-flight and during a flight.
- Comments made by the employee to Witness C, a female
flight attendant, pre-flight, on various flights in
Queensland, including that “he had slept with a lot of
girls at the airline”; “this is her” showing her photos
of Witness A completely naked on his iphone; and
‘rating’ the female passengers as they boarded the
aircraft by whispering “She’s got great tits” and
“She’ll be great in bed”. These comments made Witness C
feel awkward and uncomfortable.
- At the airline’s Christmas Party in 2015, the
employee said to Witness F “I really want to have a
threesome with you [Witness F] and [Witness D]. Oh,
sorry, I mean a foursome with [Person A]”. Witness F was
offended.
- The employee telling Witness G, a junior female
flight crew member during a flight “take off your
shirt”, to which she replied “I am wearing a dress”, to
which he responded “take off your dress”, to which she
responded “no” and walked away. This conversation made
Witness G uncomfortable.
29 October 2015 - Witness A made a formal complaint to
the airline by completing an EEO complaint form. The airline
began its investigation. Witnesses B, C, D, E and F came
forward with witness statements at that time, and Witness G
after wards.
18 December 2015 - the airline advised the employee that
it was conducting an investigation into his conduct, and
gave the employee the opportunity to respond. The airline
particularised the complaints. The airline gave the employee
every opportunity to respond – it sent 8 letters, the
employee 9 responses. The employee was suspended on full
pay.
4 February 2016 - the airline gave notice of termination
of employment to the employee, as follows:
“As you are aware, [the airline] has conducted an
investigation into allegations that you engaged in
sexual harassment toward a number of cabin crew members.
The investigation has found that the following
allegations were substantiated:
1. You showed sexually explicit images of a crew
member in intimate positions to other fellow crew
members while in flight and on an overnight. Some of
these images…[deleted].
2. On multiple occasions you made inappropriate comments
of a sexual nature to or within hearing of fellow cabin
crew members.
3. You made unwanted sexual advances to fellow cabin
crew members…
In light of all the circumstances, a decision has
been made to terminate your employment effective
immediately without notice for serious misconduct.”
Note: The names of the airline, the employee and
the witnesses are the subject of confidentiality orders made
because of the personal and private nature of the evidence.
The decision
Commissioner Cloghan found the employee’s conduct proven
in terms of the display of sexually explicit images of
Witness A to work colleagues, making inappropriate comments
of a sexual nature, and making unwanted sexual advances. He
concluded that this “would have been unwelcome,
disrespectful, offensive and contrary to the airline’s EEO
Policy and Code of Conduct”. It was serious misconduct.
Therefore the airline had a valid reason to dismiss the
employee pursuant to section 387(a) of the Fair Work Act
2009, and the airline had taken into account the other
requirements of section 387.
The employee’s dismissal was not unfair (i.e. it was not
harsh, unjust or unreasonable).
The Commissioner made these observations:
- The employee denied the Witness allegations. The
Commissioner observed that “Denial is a high risk
approach to allegations” and “can be interpreted as
evading or attempting to ignore, all the evidence which
points in a different direction”. He found the denials
to be “dishonest” behaviour, and concluded that the
airline had reasonable grounds for summary dismissal.
- The employee justified his behaviour by saying that
he was a “victim” of the airline’s “workplace culture”,
that he was a “patsy”, for a workplace culture where
“nothing is really off limits, it’s pretty out there…”
and that “almost every flight, the talk would turn into
a discussion on sex”. The Commissioner rejected this
justification and stated that the employee “is liable
for his own conduct”.
- The fact that the employee was a Cabin Crew
Supervisor meant that he was held to a higher standard
of behaviour: “I find that his conduct was in conflict
with his role as a leader and the expectations of those
he led, in particular, Witnesses A, C, D, F and G. The
employee did not treat these employees with dignity,
courtesy and respect, and engaged in conduct which was
unwelcomed and uninvited.”
- The Commissioner rejected the employee’s complaint
that his treatment was inconsistent with the airline’s
treatment of Witnesses A and D. Witness A had sent
explicit photos to the employee in the course of their
relationship (they were not unpleasant or unwanted and
did not constitute sexual harassment). Witness D was
disciplined and received a written warning for
on-sending two of the explicit photos to work
colleagues.
Conclusions
An employer must investigate thoroughly all complaints of
sexual harassment in the workplace. Failure to investigate
complaints might expose the employer to a complaint to the
Australian Human Rights Commission under the Sex
Discrimination Act 1984, and to allowing a toxic
workplace culture to exist, which could lead to Occupational
Health & Safety (OHS) exposure.
When dealing with complaints of sexual harassment, an
employer must determine if the conduct is sufficiently
serious so as to merit immediate dismissal. Otherwise, they
might expose themselves to a suit by the employee for unfair
dismissal and the payment of damages and reinstatement, if
the Commission finds that the conduct merits only a written
warning.
The determining factors in this case were:
- The employer’s EEO Policy and Code of Conduct gave
clear warning to the employee that unwelcome and
uninvited behaviour of a sexual nature was an explicit
breach of the EEO Policy, which the employee
acknowledged.
- The multiple incidents offset the fact that there
was no unwanted touching or sending of photos or texts
or posts on Facebook. It was enough to show sexually
explicit images on the mobile phone (uninvited) to work
colleagues and to make unwelcome comments of a sexual
nature which made the recipients awkward and
uncomfortable and caused humiliation.
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