Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital

[2018] FWC 3921

[2018] FWC 3921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Oliver Bridgwater
v
Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital
(U2018/2872)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 2 JULY 2018

Application for an unfair dismissal remedy – serious misconduct – sexual harassment – out of hours conduct – valid reason – dismissal not unfair – application dismissed.

[1] The applicant, Oliver Bridgewater has made an application for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 in relation to the termination of his employment by the respondent, Healthscope Operations Pty Ltd, on 2 March 2018.

[2] The application was heard today, 2 July 2018. Mr L Maroney of the Health Services Union of Australia appeared for the applicant. Mr C Issa, Workplace Relations Manager, appeared for the respondent.

[3] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[4] The applicant was dismissed for serious misconduct after he was found to have engaged in conduct towards another staff member of an offensive, unwelcome and sexual nature, in breach of the respondent’s EEO – harassment and discrimination policy.

[5] I am satisfied that the applicant sent a highly offensive and unwelcome message of a sexual nature to a new graduate Registered Nurse on Instagram, while he was in a pub, on 23 December 2017. I am also satisfied that the applicant and the nurse who received the message had previously had very little contact. The nurse responded in a way that was designed to ‘downplay’ the message and to curtail any further communication. She certainly did nothing to encourage the applicant.

[6] The applicant submitted that:

•  the message was at most at the lower end of the spectrum of sexual harassment;

•  the nurse did not make any objection to the message, and her response was objectively capable of conveying that the message was not unwelcome;

•  the communications were private between the applicant and the nurse;

•  the applicant and the nurse did not work directly together and the communication did not impact, or have the potential to impact, their working relationship; and

•  the communication did not occur at work.

[7] I think it wrong to minimise the nature of the message sent by the applicant. I repeat that it was, objectively, a highly offensive and unwelcome message of a sexual nature.

[8] Moreover, while the conduct occurred outside of office hours, one cannot ignore that the applicant and the nurse worked in the same building. The nurse was expecting to be transferred back into a role where she would on occasion be working in close proximity to the applicant. This put her in an extremely stressful position. It also brought the matter within the legitimate concern of the respondent.

[9] The applicant emphasised the delay between the offending message and when the nurse spoke to her manager about it. I found the nurse’s evidence about the delay and what then triggered her going to her manager quite credible and reasonable. I do not think the delay in the nurse making her complaint had a significant bearing on the fairness of the applicant’s dismissal.

[10] The respondent has a detailed policy on sexual harassment. The applicant had received training about the policy.

[11] I am satisfied that the applicant’s conduct breached the policy and that, in all the circumstances, the applicant’s sexual harassment of the nurse constituted a valid reason for his dismissal by the respondent on the grounds of serious misconduct.

[12] I am satisfied that the applicant was notified of the reason for his dismissal by letter on 15 February 2018, and was given an opportunity to respond.

[13] The applicant was invited to bring a support person with him when he met with the respondent.

[14] The procedure adopted by the respondent to effect the dismissal was consonant with its size and access to expert human resources advice.

[15] I have also had regard to the following factors:

•  the applicant’s failure to keep another allegation concerning inappropriate conduct confidential, while it was being investigated, despite a specific and unambiguous direction to the contrary;

•  the eventual contrition shown by the applicant, on being told how upset the nurse was;

•  the applicant’s age (47 years) as well as the age imbalance between the applicant and the nurse;

•  the relatively specialised nature of the applicant’s occupation;

•  the anxiety disorder suffered by the applicant; and

•  the applicant’s length of service with the respondent.

[16] I do not think that the applicant was drinking while he sent the message reduces his responsibility for his action. Nor do I have sufficient evidence to establish whether the applicant’s service could be characterised as ‘unblemished’.

[17] Having regard to all the circumstances, I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable.

[18] The dismissal was not unfair. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

L Maroney for Oliver Bridgwater.

C Issa for Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital.

Hearing details:

Sydney.

2018.

July 2.

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