Australia: Salicious facts, important principles

Last Updated: 27 June 2018
Article by Michael Byrnes

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 [2018] FWC 3148.

THE ALLEGATIONS

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.

CONFIDENTIALITY

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":

  1. orders that all or part of the hearing is to be held in private;
  2. orders about who may be present at the hearing;
  3. orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;
  4. orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:
    1. evidence given in the hearing;
    2. 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 intent of section 593(3) of the FW Act is to secure the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or a person affected by the proceeding is either properly entitled to preserve or should be permitted to preserve in order that the person may effectively participate in the proceeding. The capacity of a person to effectively participate in the proceeding before the FWC may be affected by, for example, a reasonable concern held by the person that the disclosure and publication of that person's name or address might result in some form of retribution, harassment or intimidation."

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:

"It is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence of the application of the principle of open justice. Of itself this has never been regarded by the courts as a reason for the suppression of evidence or for an order restricting access to documents."

Her Honour further noted:

"Every day in hearings before the FWC, employees are called as witnesses to give evidence against former colleagues accused of poor performance or conduct. Keeping the identity of these witnesses secret in the absence of some established threat or risk of harm to them runs contrary to the principles of open justice because it may promote the making of unsubstantiated, frivolous or vexatious allegations. If employees are aware that they may be called upon to give evidence in legal proceedings, they are more likely to ensure that any allegations they make are based in fact and are not frivolous or vexatious in nature."

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:

"Not only did the City provide Mr Reguero-Puente with multiple opportunities to respond to the reasons for which he was ultimately dismissed, the City specifically warned him of the consequences of failing to do so. When he continued to decline to take advantage of the opportunity to do so voluntarily, the City directed him to attend the meeting with the Investigator for this to occur."

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

"Mr Reguero-Puente concedes that he was given an opportunity to respond to the reasons for his dismissal but says that he decided not to participate in the investigation meeting because he did not believe that the investigation was impartial, he was not provided with all the information he had requested from the City and he had received legal advice not to attend."

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

"Mr Reguero-Puente did not identify a reasonable basis for his belief that the investigation was not impartial. A simple Google search, which Mr Reguero-Puente could have easily undertaken to ease his concerns, reveals the details of the qualifications, experience and expertise of the Investigator and her employer. This suggests that she was appropriately qualified and experienced to undertake the investigation. A review of the investigation report reveals that the Investigator did in fact discharge her duty to conduct the investigation in a balanced and thorough manner."

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:

"The key pillar of Mr Reguero-Puente's defence is not that he did not do what he is alleged to have done, but rather that the women should have told him to stop. Some of the women gave evidence that they did in fact do so and it made no difference. Others clearly tried to curtail conversations that Mr Reguero-Puente was trying to lead in an appropriate direction. Others admittedly participated. All say that to the extent that they did respond, they felt they had little choice given Mr Reguero-Puente's seniority and his behaviour in the workplace."

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:

"With all due respect Mr Reguero-Puente, who is 45 years old and in a long-term relationship of more than 12 years, it is difficult to comprehend that Mr Reguero-Puente could have reasonably believed that all these much younger women, seriously welcomed his advances."

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:

"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."

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:

"Despite Mr Reguero-Puente's assertion that he genuinely believed his conduct was at all times welcome and reciprocated, the text message histories he tendered reveals that he was aware that there are boundaries of acceptable behaviour and that he had overstepped those boundaries. More relevantly it confirms that as soon as they became aware of his conduct, Mr Reguero-Puente was informed by the City that his behaviour was inappropriate and that it must stop. Nevertheless, Mr Reguero-Puente continued to engage with much younger, more junior staff in an inappropriate manner."

KEY LESSONS

This decision gives rise to some interesting lessons for employers and employees alike.

These are:

  1. 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.
  2. 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.
  3. 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.

For further information please contact:

Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au

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.

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