At a time when the #MeToo Movement continues to gain momentum worldwide, the Fair Work Commission (FWC) recently found in favour of the City of Rockingham for sacking a long-standing senior employee for sending salacious texts during and after working hours to his female (and much more junior) colleagues. Background Following complaints from female employees that Mr Colin Reguero-Puente had been sending unwelcome and unsolicited emails and text messages after hours and on weekends, the City of Rockingham suspended Mr Reguero-Puente on full pay in October 2017 pending the outcome of an independent investigation. Ultimately, on 6 December 2017, Mr Reguero-Puente was informed in writing that he was summarily dismissed from his employment with the City of Rockingham on the basis that the allegations of misconduct were substantiated and he was found to have acted in breach of the City of Rockingham’s ‘Bullying Policy and the Code of Conduct’. On 26 December 2017, Mr Reguero-Puente filed an application with the FWC under section 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging he was unfairly dismissed by the City of Rockingham and sought an order that he be reinstated. Findings In finding the dismissal of Mr Reguero-Puente was not unfair, Fair Work Commission Deputy President Binet (Deputy President) identified on the evidence that Mr Reguero-Puente generally exercised ‘a lack of good judgement or a sense of what conduct is or is not appropriate in the workplace’, which caused his colleagues to feel concern for their safety in the workplace. The Deputy President observed that it was ‘not a case of an office romance between consenting adults’; rather, the evidence revealed ‘a pattern of [Mr Reguero-Puente] befriending much younger female subordinates and then progressively sending more frequent and increasingly less appropriate messages.’ While Mr Reguero-Puente was previously warned by his manager about the inappropriateness of his conduct, he continued to behave inappropriately, which justified the decision to suspend him pending the outcome of the investigation, and ultimately terminate his employment once the investigation findings were finalised. With respect to Mr Reguero-Puente’s claim that the recipients of his text messages should have told him to stop, the Deputy President said ‘[i]n this day and age young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours’. Key take-away points for employers Employers have a positive obligation to maintain a safe working environment Taking proactive steps to stamp out sexual harassment and bullying in your workplace is critical to developing a safe and healthy work environment. In addition to the complainants who had come forward with allegations against Mr Reguero-Puente, the City of Rockingham took proactive steps to identify other employees who had been in receipt of inappropriate texts or the target of inappropriate comments or conduct by Mr Reguero-Puente. Undertaking preliminary enquiries is sometimes necessary to assess the scope of a potential risk to health and safety and whether there is prima facie evidence to commence an independent investigation. Such enquiries should be conducted in a sensitive and discreet manner to protect the integrity of any prospective investigation and the reputation of those involved. Do not turn a blind eye to out of work hours conduct An employee’s conduct out of work hours gives rise to a variety of risks in the workplace, including reputational damage, conflict of interest, and breach of confidentiality. While the conduct in this case generally took place after hours and on weekends, the City of Rockingham nevertheless considered it a ‘workplace’ issue because there was a sufficient connection between the conduct of Mr Reguero-Puente and the workplace. Employers should therefore avoid turning a blind eye to an employee’s conduct out of work hours if it has the potential to damage the employer’s interests or workplace relationships. Appointing an independent investigator is necessary in some circumstances Creating the right foundations for a procedurally fair investigation from the outset is important to protect the integrity of the findings and place the employer in a strong position to defend any subsequent legal claims. The City of Rockingham was in a strong position to defend this unfair dismissal claim because it appointed an independent investigator from outside the organisation to interview the relevant parties, consider all the evidence, and produce findings. While allegations can sometimes be investigated internally, it was appropriate for the City of Rockingham to appoint an independent investigator with appropriate expertise because the allegations were of a serious nature, involved multiple employees, and related to complex legal issues.
