Legal

Fair Work rules airline was within rights to sack supervisor who shared sexually explicit photos with colleagues

Eloise Keating /

The Fair Work Commission has ruled an airline had a valid reason to terminate the employment of a cabin crew supervisor who attempted to use the company’s culture as a justification for allegedly showing naked photos of a colleague to other workers and making sexual advances on colleagues.

According to one employment lawyer, the case is an important reminder to all employers about the need for clear workplace policies and training, and for consistency in how allegations of staff misbehaviour are handled.

Read more: Five lessons from some of the most important unfair dismissal cases of 2015

In a decision on Monday, Fair Work Commissioner Danny Cloghan ruled the alleged behaviour of the supervisor did take place and amounted to serious misconduct, which was contrary to the unnamed airlines’ Equal Employment Opportunity (EEO) policy and its employee code of conduct. As a result, he found the employer had a valid reason to terminate the supervisor’s employment and the supervisor’s claim for unfair dismissal was dismissed.

The supervisor had worked for the airline since January 2011 and served as a cabin crew supervisor since June 2014. He was fired in February this year after an investigation into allegations that he sexually harassed a number of other cabin crew workers, including by showing them naked photos and videos of a flight attendant who had had previously been in a sexual relationship with.

He was also accused of making “inappropriate comments of a sexual nature” to or within hearing of other cabin crew members and making unwanted sexual advances to other cabin crew members.

The supervisor denied showing the photos to his colleagues and claimed he was offended when the flight attendant had sent him the material during their relationship. He also claimed to be a “victim” of the company’s workplace culture, stating that he was a “patsy” for the culture within the company.

He also argued that another employee had engaged in “substantially the same conduct” for which he was dismissed, including sending photographs, however this employee had not been fired.

However, the Commission ruled the supervisor, and not the company or its culture, was liable for his behaviour, and the photographs sent by the other employee in question were “less sexually explicit than the photographs shown by the [supervisor to his colleagues”. This other employee was disciplined and issued with a written warning over her conduct, and the Commission found those action to be in proportion to the conduct.

Workplace lawyer Peter Vitale told SmartCompany it is common for employees who have been fired for serious misconduct to attempt to implicate a company’s culture in their actions.

“Particularly where there are allegations of unsavoury language or insulting or abusive conduct, it is no uncommon for employees to defend themselves against allegations by suggesting it is a common part of the culture and other employees have done the same,” he says.

Vitale says one the key takeaways for other employers from this case is to make sure all allegations of employee misbehaviour are handled consistently.

“Consistency of treatment for the same kind of behaviour is something the Commission places a great deal of importance on in assessing the fairness of a termination,” he says.

The other key lesson is around proportionality, or whether action taken by an employer is in proportion to the conduct. In this case, Vitale says the Commission found the actions of the employer to both the behaviour of the supervisor, and of the other employee who received a written warning, were consistent and proportional.

“These arguments about culture are familiar ones and employers do need to exercise some care,” he says.

“It is up to employers to enforce the appropriate culture.”

Vitale says this case is also another reminder of the importance of having clearly communicated workplace policies and training staff in those policies. In this instance, the employer was able to show the supervisor was aware of and understood the company’s EEO policy and code of conduct, something which the supervisor also acknowledged before the Commission.

“This is a sophisticated employer who has done the right thing in terms of having appropriate policies in place and educating employees about policies in effective ways,” Vitale says.

“So they were able to go to the Commission and say ‘we’ve done all the right things to educate the workforce about appropriate behaviour, which the Commission accepted and found a failure to comply with was a sound basis for terminating employment.”

The Fair Work Commission did not publish the name of the employee or the airline in its judgment.

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Eloise Keating

Eloise Keating is the editor of SmartCompany. Previously, Eloise was news editor at Books+Publishing, the trade press for the Australian book industry.

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