Pub­li­ca­tions

What becomes of the bro­ken heart­ed?” and can or should employ­ers care anyway?

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 case)

  • 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 stalk­ers’?

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 rea­son­able direction.

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.