The unfortunate answer to the Motown ballad question -
'What becomes of the broken hearted?' - is they
sometimes become stalkers.
So, when a workplace romance or flirtation goes wrong, does the
employer have a right to tidy up the mess?
A quick review of past decisions shows that the Fair Work
Commission is reluctant to let employers terminate an employee
based on their conduct outside work time (and not connected with
the workplace). So:
outrageous conduct of a sexual nature that occurred after a
work-sanctioned party could not be the basis for the employer
disciplining the employee, even though the employee had engaged in
brazen sexual acts in the presence of her workmates (2007
sexual assault (grabbing and kissing an employee on the mouth
without their consent) did not entitle the employer to terminate
the offending employee even though the assault occurred within an
hour after a Christmas party and on the same premises (2015)
(this one took place in the Northern Territory - and it could
only have happened in the NT!) where an employee's supervisor
was found naked at the employee's home on
three separate occasions, this did not amount to
work-related sexual harassment (2016)
And what does the Commission now think of
After the breakdown of an office romance, an employer directed
an employee not to have contact with a co-worker unless it was
work-related. The employee continued to harass and contact the
co-worker outside work hours and was subsequently dismissed.
The employee claimed unfair dismissal but, in this case, the
Commission found that these out of hours contacts - in the
circumstances of the employer's directive - were
"legitimate considerations" for the employer in
deciding whether to terminate the offending employee. The
employer's direction to the employee not to contact a fellow
worker outside work hours was a valid direction and so, by
breaching the direction, the employee had breached a lawful and
This was a pragmatic decision which took into account the fact
that the relationship arose out of the two workers working together
and the realities of the workplace - the mere presence of the
'stalking' employee in the workplace would create profound
issues. Inevitably, the victim of the stalking conduct would cease
to attend work and would be effectively penalised for the
other's misconduct. A win for common-sense and decency.
But the question I'm left with is – would it have made
a difference to the poor NT employee if her employer had expressly
directed the supervisor not to fall asleep naked on her verandah
and in her son's bedroom? Is that what it takes??
This article was first published on LinkedIn as a blog. You can
read the original here.
This case highlights the importance of being aware of "genuine redundancy", to avoid applications for unfair dismissal.
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