In a decision touching on out-of-hours conduct and social media use, the Fair Work Commission has upheld the sacking of a 47-year-old man who, while downing beers at the pub, sent a sexually crude Instagram message to a young female co-worker.
Prince of Wales Private Hospital sacked Oliver Bridgwater for sending “a highly offensive and unwelcome message of a sexual nature” to a new graduate registered nurse on Instagram.
Bridgwater, represented by the Health Services Union, was in a pub at the time, two days before Christmas in December 2017.
The Fair Work Commission heard the nurse, who had very little contact with Bridgwater at work, responded in a way “designed to ‘downplay’ the message and to curtail any further communication”.
“She certainly did nothing to encourage [Bridgwater],” Senior Deputy President Jonathan Hamberger noted.
SDP Hamberger rejected Bridgwater’s submissions including:
- the message “was at most at the lower end of the spectrum of sexual harassment”;
- the nurse did not object to the message, and “her response was objectively capable of conveying that the message was not unwelcome”;
- Bridgwater and the nurse did not work directly together and the “private” communication “did not impact, or have the potential to impact, their working relationship”; and
- the communication happened outside work
“I think it wrong to minimise the nature of the message sent,” SDP Hamberger said.
“I repeat that it was, objectively, a highly offensive and unwelcome message of a sexual nature.”
Moreover, “while the conduct occurred outside of office hours, one cannot ignore that the applicant and the nurse worked in the same building”.
He noted the hospital has a detailed policy on sexual harassment, and Bridgwater had received training about the policy.
SDP Hamberger found Bridgwater breached the policy and the sexual harassment of the nurse constituted a valid reason for dismissal on the grounds of serious misconduct.
(Oliver Bridgwater v Healthscope Operations Pty Ltd T/A Prince of Wales Private Hospital , FWC 3921, 2/06/18)