It’s another decision from the Fair Work Commission about an employee engaging in sexual harassment at a work-sponsored event.
In the case of Applicant v Employer (names were suppressed):
- the employee was away from his usual place of work;
- he was staying at a hotel at the expense of his employer in between his shift, some training and a roster change; and
- he groped the bum of one of the hotel’s female employee (adopting the words used in the evidence and the decision)
There are enough decisions about employee dismissals caused by conduct occurring out of work hours. Rose v Telstra is the leading decision which allows that connection where there is a clear link between the out of hours conduct and the employment. It’s limited to circumstances where the conduct:
- causes serious damage to the employer’s and employee’s relationship;
- damages the employer’s interests; or
- is incompatible with the employee’s duties.
This case was different from cases where an employee sexually harasses another employee at a work function (which are all too common). In Applicant v Employer, the employee sexually harassed an employee of a third party, the hotel.
The FWC determined that the conduct was sufficiently linked to his employment. The employer had been using the hotel for years. The employee had stayed there before at his employer’s expense (part of his agreement). The employer paid for both the rooms and meals (also part of his agreement). The employee was paid while he was at the hotel. The only reason why the employee was there was because of his (now former) employment.
It was well known to the hotel and the harassed hotel employee that the employee was employed by the employer. Accordingly, the employee’s conduct risked destroying the relationship between the employer and the hotel.
This case is another reminder that employees are required to be on their best (or at a bare minimum, appropriate) behaviour when they’re out and about at the employer’s expense.
Sexual harassment policies, as always, need to address sexual harassment occurring outside the workplace.
More importantly, this conduct should not occur at all.