Wednesday, 9 March 2022

Groping at Straws: No more excuses for ‘out of hours’ workplace sexual harassment

Lines of appropriate workplace conduct can be blurred at work-related events, such as Christmas parties or other gatherings, particularly when alcohol is involved, or a gathering is held offsite.

However, the FWC has drawn some of those lines more clearly after a Westpac manager groped a female colleague without her consent, at a “sundowner” event organised by Westpac at a bar after a work professional development day.

He was dismissed following an investigation and review of the CCTV footage of the incident, for breaching Westpac’s Sexual Harassment Policy. He was also charged by police for indecent assault.

Despite this, the manager claimed that he had been unfairly dismissed by Westpac and there was not sufficient connection between the “sundowner” and his employment with Westpac.

Were there valid defences for the manager’s behaviour?

It should be evident that an employee groping a colleague without consent would always be unacceptable.

However, in this instance, the dismissed employee argued that alcohol consumption at the event blurred his grasp of appropriate boundaries, and that the female employee’s own behaviour, in which she leaned against the manager and had other small physical contact with him throughout the evening, implied consent.

The FWC unequivocally stated that alcohol does not excuse intimately touching another person without their consent, noting that “the bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the community” and an “even higher bar has been set for interactions occurring in work related environments.”

The FWC also found that the manager’s actions were not excused by the female employee’s own physical actions during the evening. Rather, the FWC considered that the female employee’s actions may have constituted a separate breach of Westpac’s Sexual Harassment Policy.

Were the incidents related to the manager’s employment?

The FWC held that attendance at a work-organised event, even outside of their regular office space, meant that the interaction between the manager and the female employee were necessarily in the course of employment, as they would otherwise not have been in each other’s company that night.

What should you do?

In this case, the FWC criticised Westpac about the presence of alcohol at work-related events, and stated that employers should ensure there is a clear conclusion to any work event and employees leave the event in a safe way.

Despite this, Westpac’s defence was assisted greatly by its comprehensive policies on sexual harassment which clearly stated that “sexual harassment can occur at any time, in any situation where you interact with work colleagues, contractors, customers, clients and visitors” and includes incidents that occur in “’out-of-work’ settings.

It is worth reviewing whether your company’s policies are as comprehensive and include conduct outside the usual workplace. Further, for any work-related events, employers should:

  • Remind employees prior to the event that the usual standards of appropriate workplace behaviour apply;
  • Ensure responsible service, and consumption, of alcohol at the event; and
  • Appoint representatives of the Company to supervise appropriate behaviour at the event.


Source: Keron v Westpac Banking Corporation [2022] FWC 221


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.