What can employers do when workplace romances go terribly wrong?

One answer to the question posed in the ballad:

‘What becomes of the broken hearted?’ is:

‘Some become stalkers!’

Which poses another question: ‘Where does that leave employers in having to tidy up the mess?’

A quick survey of cases highlights that the FWC has a reluctance to allow employers to use employee conduct outside work time and not connected with the workplace as a basis for termination:

• In a 2007 decision, SDP Hamberger found that outrageous conduct of a sexual nature that occurred after a work-sanctioned party in accommodation booked. What can employers do when workplace romances go terribly wrong? (and paid for) by two staff members so they could attend the function, could not be the basis for disciplining by the employer of the employee, despite the latter found to have engaged in brazen sexual acts in the presence of her workmates by the employer –

• In a decision in 2015, VP Hatcher decided that sexual assault (grabbing and kissing an employee on the mouth without their consent) was not a matter for the employer to terminate the offending employee even though it occurred within an hour after a Christmas party and on the same premises.

• In a 2016 Northern Territory decision (and it could only have happened in the NT), where an employee made a claim against her supervisor in relation to sexual harassment, Commissioner Sievers found

that on the three occasions where the employee’s manager was found naked at the employee’s premises, it did not amount to sexual harassment because it was not work-related.

So we come to the 2017 decision of the FWC, where (after the breakdown of an intra-office romance) an employer had directed a worker not have contact with a co-worker unless it was work-related.

The employee continued to harass and contact the co-worker outside of work hours. When considering offending employee’s claim for unfair dismissal, VP Watson considered these out of hours contacts – in the circumstances of the employer’s directive – were ‘legitimate considerations’ for the employer in deciding whether to terminate offending staff member’s employment.

In essence, the Commission found that a direction by the employer to an employee not to contact a fellow worker outside of work hours was a valid direction and the breach of it was a breach of a lawful and reasonable direction.

The decision of VP Watson in this case was a practical decision which took into account the realities of the workplace and the fact that the relationship stemmed out of the two workers working together.

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 misconduct.

By Warwick Ryan,
Partner, SWAAB


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