The attention an unfair dismissal case receives is sometimes proportionate to how salacious the underlying facts considered in the case are as opposed to the importance of any legal principles that emerge. Having said that, an interesting factual matrix (which sometimes results in a "tabloid" or "clickbait" treatment of a case) is not inherently inconsistent with an analysis leading to useful legal observations with potentially broad application.
This is so in the recent Fair Work Commission (FWC) decision of Colin Ramon Reguero-Puente v City of Rockingham  FWC 3148.
The applicant, Mr Reguero-Puente, faced nineteen allegations of misconduct almost all of which related to his interaction with other staff members, particularly younger female colleagues.
An independent investigator was engaged to conduct an investigation into these allegations. She found that all the allegations were substantiated. On this basis, Mr Reguero-Puente was summarily dismissed by his employer, the City of Rockingham (City).
The interactions that were relied upon by City for the summary dismissal were numerous and explicit.
Below is a selection of the alleged interactions (as set out in the letter of allegations provided to Mr Reguero-Puenete, with some expletives censored):
- On a number of occasions, you made inappropriate comments to C Frees such as you would consistently compliment her and say comments such as, 'I'll let you go up the stairs first so I can watch your arse', 'You look hot. Did I just say that out loud', 'I would like to see you in those heels only', you stated to her that 'her arse looks good in her work uniform', 'your arse looks good, but I can't say that as I have done my sexual harassment course so I can't', 'Can you leave your smell in my car next time', 'Can you leave your underwear, a bra or something, in my car next time', "Can you spray your perfume in the car so that (partner) gets jealous'."
- On 4 October 2017 during a business meeting at a café you asked C Frees and made multiple comments as to whether she was loud in the bedroom.
- On a number of occasions you made comments about C Frees being 'kinky' due to the presence of cable ties in your work vehicle.
- You ask [sic] C Strebel in one text message is [sic] she looked 'like the just been f***** look' after she had a car accident.
- You also asked C Strebel if she was getting dressed up or going for the 'just f*****' look.
- You made numerous unsolicited texts to C Strebel outside of work hours and at unacceptable times of the night.
- "After sending S Haskett a number of inappropriate and unsolicited photographs you repeatedly requested that S Haskett send you an inappropriate photograph of herself. S Haskett felt pressured and harassed you into providing the photograph given your seniority.
The above is by no means an exhaustive list of the allegations but gives some flavour as to the character and extent of them. There are three particularly interesting matters that arose from the deliberations of Deputy President Binet in this decision relating to confidentiality, investigations and consent.
During the course of the hearing, City made an application for confidentiality orders in relation of the identity of certain witnesses and the content of various exhibits.
This issue involved consideration of section 593(3) of the Fair Work Act 2009 (Cth.), relating to confidential evidence in hearings, which is in the following terms:
"The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason":
- orders that all or part of the hearing is to be held in private;
- orders about who may be present at the hearing;
- orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
- orders prohibiting or restricting the publication of, or the
disclosure to some or all of the persons present at the hearing of,
- evidence given in the hearing;
- matters contained in documents before the FWC in relation to the hearing."
Deputy President Binet started with the proposition that, in an assessment of whether a confidentiality order should be made, the principle of open justice will usually be given paramount consideration.
This principle is only to be departed from where it would frustrate the administration of justice by unfairly damaging some material private or public interest. Binet DP noted the power to order confidentiality was to be exercised infrequently and with caution.
In this regard, her Honour observed:
The submissions of City on this issue were:
- identification of witnesses may have a negative effect on the ability of those witnesses to interact with other City employees;
- it also may have a negative effect on the willingness of other employees to inform City of other inappropriate conduct that may occur, compromising the ability of City to detect inappropriate conduct and provide a safe working environment for its employees; and
- some of the materials filed by Mr Reguero-Puente were not relevant to the proceedings and disclosure of those materials had the potential to cause unnecessary embarrassment and harm to persons with no involvement in the proceedings.
Deputy President Binet declined to make confidentiality orders. Her Honour noted:
Her Honour further noted:
PARTICIPATION IN AN INVESTIGATION
As noted above, there was an investigation into the nineteen allegations against Mr Reguero-Puente which found those allegations to be substantiated.
In determining whether the dismissal was unfair the FWC needed to consider whether Mr Reguero-Puente was provided with an opportunity to respond to the reasons for his dismissal.
Mr Reguero-Puente declined to take part in the investigation.
This is not uncommon. Some employees against whom allegations are made refuse to cooperate with an investigation because they perceive some strategic advantage in not doing so, presumably hoping to create a stalemate situation preventing the investigation being concluded and adverse findings being made.
As a general proposition, as this case demonstrates, this is a misconceived approach.
In this regard, Deputy President Binet observed:
The general right of an employer to give an employee a reasonable and lawful direction is the basis upon which an employer can order an employee to cooperate with a workplace investigation. Some employees, often in "bush lawyer" mode, wrongly believe they have an inalienable right to remain silent in the face of any allegations made against them. In most situations that's not right and there can be serious adverse consequences for an employee who fails to put their position in response to allegations. (One potential exception is where there is a concurrent criminal investigation or proceedings.)
Deputy President Binet continued
If there is a sound basis for a contention that an investigation is not impartial or otherwise being improperly conducted then the employee should squarely raise that matter supported by particulars and evidence. In this case, as Deputy President Binet observed
Not surprisingly, the FWC found that Mr Reguero-Puente had been given multiple opportunities to respond but chose not to take advantage of those opportunities.
While it is not ideal, where an employee against whom allegations have been made has been given multiple opportunities to respond and elects not to do so (without cogent reasons) then it is open to the investigator to properly conclude the investigation and make findings without the response of that employee (provided the employee has also been warned this step could be taken).
THE "NO" OR "STOP" FALLACY
As noted by Deputy President Binet:
In the course of her deliberations, Deputy President Binet made some interesting observations about the nature of such interactions between staff members and the principle of genuine consent. Her Honour noted:
Having served up a "reality check" applicable to almost every middle aged male employee who somehow believes himself to be the George Clooney or Brad Pitt of the workplace, Deputy President Binet continued:
Deputy President Binet then went from this broader social observation (which is a useful guiding principle for all supervisors and management) to a specific consideration of the facts of this case:
This decision gives rise to some interesting lessons for employers and employees alike.
- Confidentiality: The power of the FWC to exercise its powers to make confidentiality orders will be used sparingly. The mere fact sensitive or embarrassing matters might be ventilated in a public hearing is not, of itself, going to justify the making of such an order. In the case of identity of witnesses, evidence of an actual threat or risk of harm will usually need to be identified. In fact, the FWC has noted that the identification of witnesses can keep people accountable thus discouraging the making of unsubstantiated, frivolous or vexatious allegations.
- Investigations: The fact an employee against
whom allegations are made has not provided a response in an
investigation does not necessarily preclude the conclusion of that
investigation and making of adverse findings. Those undertaking
investigations should ensure that such employees are given multiple
opportunities to provide their response, have not stated any cogent
reason for failing to provide the response and have been warned
that in the absence of a response the investigation might be
concluded and findings made without regard to their evidence.
Employees who think they are outsmarting an investigation process by not cooperating are very likely doing themselves a disservice. While each scenario has its own considerations, as a general proposition refusing to take part is a counterproductive strategy.
- Consent: Just because a fellow employee does not use the words "no" or "stop" does not necessarily mean that the conduct to which they are being subject is welcome. Consent to conduct needs to be freely given and not procured by threats or an apprehension of adverse treatment in the event of refusal. Power imbalances by reason of seniority or other factors need to be considered. Employees seeking to run a defence that the conduct is welcome may well find themselves subject to the same type of "reality check" given by Deputy President Binet to Mr Reguero-Puente.
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