Australia: #Timesup on inappropriate workplace behaviours

Last Updated: 11 July 2018
Article by Alison Freeman

The Fair Work Commission is showing little tolerance for inappropriate workplace behaviour in the #metoo era.

A number of Unfair Dismissal decisions before the Fair Work Commission this year reflect that the #metoo movement is gaining traction in Australia, with employers beginning to adopt a much higher standard of what is appropriate in the workplace, and taking swift action in dismissing workers engaging in inappropriate behaviour. The Commission has traditionally shown limited tolerance for sexual harassment or misconduct, but recent cases have shown that it's also solidified this position in response to changing community standards. The recent cases show a reluctance by the Commission to accept employee's excuses for bad behaviour, often scathing in its response to a sacked employee's claims that they were only having a joke or meant no offence. Excuses that they were intoxicated, suffering mental health problems, or that the conduct in question occurred out of work hours have done little to win the Commission over. Australian employers, with the backing of the Commission, appear to be signalling that inappropriate behaviour in the workforce will no longer be tolerated.

In the case of Carmelo Sapienza v Cash in Transit Pty Ltd T /A Secure Cash [2018] FWC 607, Mr Sapienza's employment was terminated after complaints were received regarding inappropriate sexual behaviour by Mr Sapienza when visiting client's premises, including hugging two female employees 30 years his junior, and asking for kisses and phone numbers. The Commission rejected Mr Sapienza's assertions that he was merely being cheeky and joking around, and any physical contact was friendly and consensual. The Commission held: "Despite Mr Sapienza's explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naïve, to say the least." The Commission indicated that ignorance won't be tolerated stating that if Mr Sapianza didn't know or appreciate that that he engaged in inappropriate behaviour, which may not be reciprocated willingly by much younger persons, then he ought to have. The Commission, in this case, was willing to overlook some clear procedural deficiencies involved in Mr Sapienza's dismissal given the gravity of the conduct.

In Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761 the Commission again supported the sacking of an older man unwilling to recognise the seriousness of his conduct which included making excessive sexual remarks and engaging in inappropriate physical conduct with young female subordinates, including sharing his chair and massaging staff. The Commission found that Mr Abarra demonstrated a complete lack of remorse or recognition of the seriousness of his conduct, with Mr Abarra's arguing that because the staff laughed when he made the sexual comments and did not tell him to stop, he could not have been offending anyone. The Commission held that Mr Abarra's comments to the young female employees "were in fact a rather blatant form of benevolent sexism which has no place in the workplace".

Out of hours inappropriate behaviour has also been found to be within the employer's domain. In Colwell v Sydney International Container Terminals P/L [2018] FWC 174, the Commission upheld the dismissal of a worker who sent a pornographic video to 19 co-workers outside of work hours despite no formal complaint being lodged by the employees to whom the video was sent. The sacked employee asserted that he didn't mean to cause offence, he thought it was a "bit of a joke", "a silly mistake on the drink, and he displayed genuine remorse afterwards. Despite arguing that the video was sent in his non-work hours and as such it wasn't for the employer to regulate the appropriateness of communications between friends outside the workplace, the Commission determined that Mr Colwell was Facebook friends with co-workers only because of their work relationship, and as such there was a connection between out-of-hours conduct and the employment. The dissemination of pornography to employees was clearly contrary to the values and culture that the employer was endeavouring to engender, including the minimisation of sexual harassment of female employees.

In Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148 the Commission upheld the dismissal of a manager, with 30 years tenure, for sending numerous salacious texts to younger female co-workers, who failed to recognise the inappropriateness of the frequency, timing and content of his messages. Despite the manager's insistence that the text messages were both welcomed and reciprocated, the Commission observed that:

"In 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, nor have comments of a sexual nature made about them, or be directed towards them in their workplace." The employer and the Commission rightly discredited any attempt by Mr Reguero-Puente to argue that because the junior employees did not explicitly tell him to stop, the conduct was welcome, particularly given the power imbalance caused by the age and seniority differentials between Mr Reguero-Puente and the employees he harassed.

In Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital [2018] FWC 3921, a 47 year old employee was dismissed for serious misconduct after he was found to have engaged in inappropriate conduct towards a young graduate nurse in sending a lewd Instagram post. Mr Bridgwater argued that his dismissal was harsh on the basis that the message was at the lower end of the spectrum of sexual harassment, the nurse's response suggested it wasn't unwelcome, and it was sent outside of work hours. The Commission decisively rejected all such excuses, arguing against Mr Bridgwater's attempts to minimise the nature of the message sent, finding that it was a highly offensive and unwelcome message of a sexual nature, in clear contradiction of the employer's "detailed" policy on sexual harassment, in which Mr Bridgwater had received training.

Concluding comments

Some Australian employers appear to be losing patience with inappropriate sexual behaviour which puts the health and safety of its workplace at risk. In the #metoo era with an increased public awareness of the incidence of workplace sexual harassment, employers are starting to recognise that if allegations of inappropriate workplace behaviour and sexual harassment are not adequately responded to, they may instead be played out in the media or through litigation against the employer for its part in the misconduct. Rather than minimising or justifying behaviours, or victim blaming, some employers are indicating that inappropriate sexual comments, the sharing of pornography, lewd messages, everyday sexism, and unwanted physical contact will no longer be seen as just having a joke with no harm intended. Instead, with the apparent support of the Fair Work Commission, #TimesUp for some workplace sexual harassers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions