Manager brings unfair dismissal claim after being fired for having sex with employee at work

Office liaisons may be run-of-the-mill but managers can find themselves in hot water if caught seducing their employees in the workplace, as a Brisbane man recently found out.

The manager of a Brisbane care facility was fired last year for alleged gross misconduct, when he was caught having sex with his female employee while at work, although the manager wasn’t actually working.

The manager argued he was unfairly dismissed because he was fired but his employee was allowed to resign.

The manager, who worked for the company since 2003, said this discrepancy meant he did not receive his long-service leave.

His unfair dismissal case was rejected this week by the Fair Work Commission on the grounds that the manager’s application wasn’t filed in time.

Applications for unfair dismissal must be filed within 14 days of being fired.

But the manager argued he only found out he had been treated differently to the female employee when he began living with her in November 2012.

Holding Redlich workplace relations specialist Charles Power says it’s pretty hard to lodge an unfair dismissal claim six months out of time.

However, Power told SmartCompany this case is a reminder to senior employees that the scope of their employment isn’t confined to what’s done during work hours, it can also extend to private capacity.
“If you do something in a private capacity which undermines your capacity to do your job well and creates a risk for harm to the employer then that can provide a valid reason for dismissal,” he says.

M+K Lawyers partner Andrew Douglas told SmartCompany there isn’t a law which prevents employees having a consensual relationship, but where a relationship exists between direct reports, it’s not uncommon for the business to ensure the couple no longer work directly together.

“It’s not appropriate for someone’s sexual partner to be their manager,” he says.

However, he says the issue in this case is not so much the nature of the consensual relationship, it’s the nature of what occurred – having sex at work.

“The real issue here is, because of his position, she felt he could have sex during working hours, it’s an issue of trust,” he says.

Douglas says every employee has a duty of good faith agreement with their employer, which means they must dedicate 100% of their time to work when they’re at work.

Power says if an employee’s actions negatively impact their ability to do their job, there are grounds for dismissal.

“Whether it’s having sex with your manager or what you post on your Facebook page, the reality now is it’s pretty much accepted that if it impairs your capacity to do your job and if it exposes the organisation to risk such as a sexual harassment complaint or work health and safety issues, you can be in trouble.”

Douglas says businesses should have policies in place that outline how managers and employees navigate workplace relationships.

“There is a need for disclosure,” he says. “I think the big issue around sexual relationships is that we think it should be private. But it creates risk for a business; it means other people feel they’re treated differently. It removes the objectivity and fairness that we all feel we should be treated with at work.”