Wednesday 18th Jul, 2018

FWC upholds wharfie’s sacking for sending porn to co-workers

messenger

A WHARFIE who distributed porn among 19 of his co-workers has had his appeal dismisse by the Fair Work Commission (FWC).

Luke Colwell was sacked in August last year by his employer Hutchison Port Holdings following an incident where he used Facebook Messenger to distribute the material.

Maritime Union of Australia assistant national secretary Warren Smith described the incident as “a silly mistake on the drink”, however lawyers for Hutchison argued such videos and images were inconsistent with company efforts to create a workplace free from sexual harassment or behaviour disrespectful of women.

FWC Commissioner Donna Sarah Mckenna upheld the decision to sack the wharfie, noting such dissemination was “the antithesis of a female-friendly environment”.

The video

Our story starts on 4 July last year when stevedore Luke Colwell spent an afternoon at the pub, drinking about six schooners of beer on his rostered day off. He then continued drinking when he got home later on.

Later that afternoon, an old friend sent him a pornographic video intended to be comical, and Mr Colwell, over the course of the afternoon and evening, forwarded that video on to 19 of his co-workers (three of whom were female), via the Facebook Messenger app.

Mr Colwell also sent the video to MUA Sydney branch secretary Paul McAleer.

The following day Mr Colwell posted an apology on his Facebook wall: “A post of mine was sent last night. It was posted to a [sic] my fb friends some got offended. I apoligise [sic] for that. Hit send all by mistake”.

One of Mr Colwell’s female co-workers called him out for sending her inappropriate material. The following correspondence was related in the FWC finding (the name of the employee had been redacted):

The employee: Are you serious? Mate don’t send me that shit

Mr Colwell: Got sent to everyone didnt mean to. My bad

Mr Colwell: So sorry [name] did not mean to offend you at all. Feel really bad, again, was not my intention.

The employee: Luke I think you’re a good guy! I don’t appreciate msgs like that and Iv heard you have been doing this shit to others. If I was you I’d delete Facebook and be the guy I know you are.. if it keeps going someone will take it really serious and you will end up with no job.

Mr Colwell: Thank you [name], and your right. It was a wrong button push. Some liked some didn’t.

Mr Colwell: Truly not meant to offend.

The employee: Mate whatever just don’t send me that shit again ..i liked you as a mate but you pushed me

It was noted in the decision that although Mr Colwell said in his apology on his Facebook page that he “hit send all”, the send-all function was not available using Messenger, and recipients had to be individually selected.

The Union

It is here the MUA enters the story, with a telephone call on 10 July from Mr McAleer to Mr Colwell.

Mr Colwell said during cross-examination at the Commission that Mr McAleer asked him about sending video during the call. Mr McAleer then asked if he was having personal problems, to which he said “I’ve got a few little issues”, and Mr McAleer then suggested he take some time off.

During cross examination, Mr Colwell maintained Mr McAleer’s suggestion he take some time off work had nothing to do with the fact he had sent the pornographic video to his co-workers.

After the telephone call, Mr McAleer made arrangements with Hutchison for Mr Colwell to take three months unpaid leave.

A little more than a week after the telephone call, Mr Colwell’s general manager, HR and industrial relations, Harriet Mihalopoulos, learned he had sent the video to other workers.

Ms Mihalopoulos then wrote to each of the three female employees who had received it; in her correspondence, she wrote the MUA had “purported to impose a sanction on the male MUA member”.

She also wrote to Mr Colwell, writing information had come to her attention that Hutchison had been misled about the reasons for his application for leave without pay – namely the MUA placed “a ban” on him concerning what could be sexual harassment of female employees.

And, Ms Mihalopoulos wrote to the MUA, about a “very strong suggestion that the [MUA] purported to deal with an alleged illegal harassment in our workforce”.

Commissioner McKenna pointed out Ms Mihalopoulos’ understanding about the MUA “ban” was not established in the evidence before the Commission.

Commissioner McKenna wrote: “While the existence of a disciplinary ban was not established on the evidence, it appears that Ms Mihalopoulos was quite genuinely concerned about matters related to the sending of a pornographic video to female employees as a sexual harassment matter and at least equally, if not even more so, genuinely concerned that MUA had taken it upon itself to discipline the applicant and that the MUA was involved in a ‘cover-up’ – and in circumstances where she otherwise expected a collaborative approach to addressing matters such as sexual harassment.”

The letter

On 1 August, Ms Mihalopoulos sent Mr Colwell more correspondence, informing him he was being put on notice and his ongoing employment was under consideration, giving him until 3 August to respond.

The MUA’s assistant national secretary, Mr Smith, then contacted Hutchison, asking to extend the deadline to facilitate meetings, but Ms Mihalopoulos was firm that 48 hours was sufficient time for Mr Colwell to respond.

However, in a telephone conversation Mr McAleer advised Mr Colwell not to respond; advice he took.

Mr Colwell was then sacked on 3 August and the application for an unfair dismissal was lodged three weeks later.

The application’s dismissal

The decision to dismiss Mr Colwell’s application for an unfair dismissal remedy hinged largely on the fact that he did not respond to the 1 August letter.

In cross-examination, Mr Smith said the incident “was a silly mistake on the drink, really, for which he was remorseful and suffered … the criticisms of his colleagues as a consequence”, which Commissioner McKenna said may well be correct.

But, the Commissioner said things may have unfolded differently if Mr Colwell admitted sending the video, with explanations.

“There was significant mitigating conduct here as a result of matters including the prompt apologies, and other considerations arise such as the blurry line concerning private social media and the workplace,” Commissioner McKenna wrote in her decision.

Mr Smith said in his cross examination social media was an endemic issue.

“It is problematic right throughout our industry,” he said.

“It is problematic within our union and it is problematic within companies. It’s a very difficult thing and the trouble is that, you know, people go and have a drink and are otherwise affected that may not put them in the most, you know, state of greatest clarity so to speak and make poor decisions, and I think it’s a case of that.  And you know, I suppose the effects of that intoxication or whatever wears off and people go, ‘I pulled the wrong rein there.’”

In the decision, it was also noted that as part of his induction, Mr Colwell was made aware of Hutchison’s policies regarding harassment and bullying.

Ms Mihalopoulos argued if something occurs outside work, and there is a nexus with the workplace that may affect employment relationships or employment rights, the employer must manage that situation at the workplace.

Commissioner McKenna’s decision read: “Ms Mihalopoulos was of the view, and firmly stated in cross-examination, that as part of its duty of care to employees if sexual harassment or any form of harassment had occurred then the respondent [Hutchison] was obligated to look into those concerns for itself even if, for example, a matter had resolved, or apparently resolved, as between the relevant employees or there was no formal complaint. She considered that as part of the respondent’s [Hutchison’s] obligations as an employer in creating an environment free from harassment it was not necessary to have a formal complaint to look into issues of harassment in the workplace.”

In her decision, Commissioner McKenna wrote Hutchison argued against Mr Colwell’s reinstatement writing the company promotes initiatives to change the predominant cultures, so as to attempt to create a workplace that is free from sexual harassment or any forms of behaviour which are disrespectful of women, and the sharing of pornographic videos and images was not consistent with this.

“Such dissemination being the antithesis of a female-friendly environment,” Commissioner McKenna wrote.

“The applicant’s conduct indicates that the applicant does not understand and does not support the respondent’s initiatives to foster a culture of respect within the workplace and reinstatement would actively undermine such initiatives.”

The decision noted Hutchison had taken steps in recent years to encourage women to participate in the stevedoring industry, including the 2016 “Women as Wharfies” initiative, which was also supported by the MUA.

These initiatives have resulted in an increase in the number of females in stevedoring roles; in July, there were about 32 females in a stevedoring workforce of just under 200 employees.

The full decision can be read here.

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