The Fair Work Commission (FWC) has found that explicit images sent by a Coles Supermarket employee to a manager was not sexual harassment because the manager responded via text “great d*** pic.”

When the manager asked the employee to provide medical certificates for being on sick leave with an injured thumb he responded by sending a picture of a hand where his thumb was replaced by his genitals. His manager text back saying “great d*** pic” which lead to the employee sending another image of a penis caught in a bike chain. Not surprisingly, the employee was fired for serious misconduct.

The employee, who was a baker at Coles, subsequently brought an unfair dismissal claiming that sending the images did not constitute a valid reason for termination. Hilarious right? The FWC heard the employee’s claim that he and the manager had a personal relationship, having each other’s personal numbers and being Facebook friends. He also said that the bakery team had a culture where it was the norm to share explicit material.

The FWC found that the employee’s actions were not considered sexual harassment due to the manager’s response suggesting it was “consensual, welcome or reciprocated.” However they did find it was “clearly conduct inconsistent with the requirement of the code to treat others with dignity, courtesy and respect”.
On this basis, and with consideration that the employee appeared to take no responsibility at all, the FWC found the actions breached Coles’ requirement to treat others with dignity and respect, and upheld the dismissal.

The importance of a code of conduct:

Whilst ordinarily explicit images would constitute sexual harassment, this case clearly demonstrates the importance of having a Code of Conduct in your workplace. Having a written Code of Conduct allows an employer to refer to and rely on the Code in the event of a legal dispute with the employee. If you can point to a policy to show the worker should have known what his responsibilities were, you are in a much stronger position in front of a court.

Not only that, a Code of Conduct articulates the values you wish to foster in your workplace. Employees can’t simply behave the same way at work as they would at the pub with their mates. Set a high standard of behavior in your workplace before inappropriate behavior becomes “the norm.”

As industry leaders in workplace relations HR Assureds can help you build the workplace policies and procedures you need to protect your business. If you’d like more information about the benefits of becoming an HR Assured client and protecting your business contact us today for an informal chat.