Both employers and employees need to be able to differentiate between harmless comments and conduct that crosses into bullying and sexual harassment territory.
When employees do not appreciate how their comments have affected others in the workplace, they commonly claim that they were “only joking”, “just mucking around” or state that they didn’t realise their comments would cause offence. Whilst an appropriate level of workplace banter is heathy and can contribute to employee rapport, employers should ensure that staff understand what is and is not acceptable at work, and deal with any breaches of these standards so that it does not become part of the accepted workplace culture.
In a recent case, a Technical Support Consultant at the Foxtel Call Centre was dismissed for ongoing instances of inappropriate behaviour, repeated sexual innuendo and inappropriate jokes in the workplace. The FWC considered 10 allegations of sexual harassment raised by the employee’s co-workers and, where substantiated, whether these instances formed a valid reason for his dismissal. The employee had been cautioned over his behaviour and participation in inappropriate conversations on several occasions.
Some of the allegations included jokes surrounding a co-worker’s and his own sexual orientation, inappropriate sexual hand gestures behind a co-worker’s back as well as uncomfortable use of body language and space. When the allegations were put to the employee, he agreed that many of his behaviours were inappropriate but attempted to excuse his conduct by claiming that he was “joking”.
It was decided that Foxtel had a valid reason to dismiss the employee because, on several occasions, his behaviour fell short of the standard expected by the company. He was provided with warnings, yet his behaviour remained unchanged. Given that the termination process was procedurally fair, the FWC decided that his dismissal was not harsh, unjust or unreasonable.
As evident from the outcome of this case, it is best practice for employers to keep sexual banter, jokes and commentary out of the workplace, as this can amount to sexual harassment. It is important that employers have robust policies that are communicated to employees so that they can deal appropriately with employees who cross the line.
Lessons for Employers
- Remain vigilant on the interactions between employees and how workplace banter is developing. This is especially important during social functions, such as Christmas parties.
- Maintain a desirable workplace culture that condemns inappropriate behaviours. This should be supported though implementing relevant policies and procedures.
- Ensure policies are regularly communicated and explained to all employees, including the consequences that follows for those who have breached the policy.
- Where necessary, provide training for employees which explains conduct which may be categorised as sexual harassment and what the consequences are for breaching the policy.
- When allegations of sexual harassment are made against an employee, consider whether it is necessary to appoint an external investigator.
 Tanyi v Foxtel Management P/L t/a Foxtel  FWC 5127 (6 October 2017).