Australia: Yet another man behaving badly - sending inappropriate emails and text messages

Last Updated: 6 July 2018
Article by Mike Baldwin

A former City of Rockingham (City) employee was found to have been fairly dismissed from his employment as a senior surveyor, after the Fair Work Commission (FWC) found he had sent inappropriate emails and text messages to a number of city employees.

Background

Mr Reguero-Puente commenced employment with the City on 5 February 1990. He was employed by the City in a variety of building surveying roles in the Building Services Department (BSD). After a period of time, he was promoted to a senior surveying position and was considered to be a trusted and experienced member of staff.

In September 2017, two City employees made complaints that Mr Reguero-Puente had been sending them unwelcome and unsolicited emails and text messages after hours and on weekends. Despite being advised on 12 September 2017 that this conduct was inappropriate and ordered to cease immediately, he continued to send inappropriate text messages and emails to other staff, generally much younger and junior females.

In a letter dated 12 October 2017, Mr Reguero-Puente was advised that he was being suspended on full pay pending the outcome of a full investigation into his conduct. On 12 December 2017, he was summarily dismissed on the grounds that the allegations had been substantiated and constituted serious misconduct under the Corruption, Crime and Misconduct Act 2003 (WA).

On 26 December 2017, Mr Reguero-Puente filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) with the FWC alleging he was unfairly dismissed by the City and sought an order that he be reinstated.

Arguments

Mr Reguero-Puente did not deny the allegations that he had sent inappropriate emails and text messages to City staff. Instead, he argued that the disciplinary action and the impact on him, was disproportionate to the gravity of the misconduct. In particular, he claimed that all the emails and text messages received were "welcome and reciprocated" and at no point was he asked to stop sending messages. Further, he argued that many of the "other allegations could not be substantiated because there were no witnesses to the events" and that the "behaviour for which he was dismissed was as a consequence of mental illness".

In contrast, the City claimed that the dismissal was not harsh, unjust or unreasonable because Mr Reguero-Puente had acted in an inappropriate manner towards a number of City staff, he had received notification from the city regarding the reasons for his dismissal, and the nature of the conduct was such that termination was necessary regardless of the length of his employment.

Decision

The FWC dismissed Mr Reguero-Puente's application that he be reinstated.

While acknowledging that a number of the allegations were of a "he said, she said" nature, Deputy President Binet found that much of the evidence adduced by the City was corroborated by witnesses, whereas Mr Reguero-Puente's evidence lacked corroboration.

Deputy President Binet found that the exhibits revealed a "pattern of Mr Reguero-Puente sending overfamiliar, sexually loaded and sexually explicit texts and images to young female co-workers, often late at night and in the early hours of the morning". This was not considered to be a case of an office romance between two consenting adults. Despite Mr Reguero-Puente's assertion that all the text messages were "welcomed and reciprocated", the text message histories he tendered, demonstrated that he was aware that there were boundaries to acceptable behaviour. Indeed, Deputy President Binet found it difficult to comprehend that Mr Reguero-Puente reasonably believed that all these women "seriously welcomed his advances".

In dismissing Mr Reguero-Puente's application, Deputy President Binet concluded by stating 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 toward them in their workplace".

Implications for employers

Given the atmosphere created by the #MeToo movement and its impact on all levels of Australian society, it is difficult to understand why we continue to see behaviour such as this visited on anyone in the workplace.

This decision by the FWC highlights the consequences of an employees' action of engaging in sexual advances towards younger women in the workplace. More importantly, the decision serves as a reminder of the general expectation of all people operating in senior positions in the workplace to act in a professional manner when interacting with junior employees in and outside the workplace.

Finally, it demonstrates that what the perpetrator saw as harmless conduct in fact constitutes inappropriate and unacceptable behaviour. All of which has been found to justify termination.

Read the decision: Reguero-Puente v City of Rockingham [2018] FWC 3148

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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