Pub­li­ca­tions

Sala­cious facts, impor­tant principles

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:

(a) orders that all or part of the hear­ing is to be held in private;

(b) orders about who may be present at the hearing;

(c) orders pro­hibit­ing or restrict­ing the pub­li­ca­tion of the names and address­es of per­sons appear­ing at the hearing;

(d) orders pro­hibit­ing or restrict­ing the pub­li­ca­tion of, or the dis­clo­sure to some or all of the per­sons present at the hear­ing of, the following:

(i) evi­dence giv­en in the hearing;

(ii) 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.