Is toxic culture a legal defence for foul behaviour?

toxic culture sexual harrassment
Fay Calderone


written on February 24, 2017

How does an employer clean up the toxic culture of an organisation if it can’t discipline and dismiss the worst offenders without risk of legal challenge? A recent decision shows where the law stands on unacceptable behaviour.

In the recent decision of Torres v Commissioner of Police, Commissioner Murphy of the NSW Industrial Relations Commission has ruled a toxic culture of swearing and sexually explicit language in a workplace is not a defence to offensive behaviour.

Senior Special Constable Torres’ conduct and repeated preoccupation with describing sexual conquests in the presence of junior probationary officers was held to be serious systemic sexual harassment and quite simply intolerable.

(Want to know about how to be proactive about workplace sexual harassment? Read our guide.)

The constable’s dismissal came after an internal investigation in response to a written complaint lodged by a young female officer in 2015. Despite a long and distinguished career which included a commendation for bravery for disarming a man wielding a knife in the Sydney Police Centre, Mr Torres’ behaviour was described as showing a “complete disregard” for the sensitivities of his colleagues.

During his time at Parliament House as a high ranking member of the security unit, Mr Torres was found to have engaged in “appalling behaviour” such as discussing his sexual exploits in detail, performing lewd acts with bananas, identifying his sexual conquests from security vision of females visiting the government building, making references to having engaged in sex with a chicken, attempting to ‘dry hump’ a colleague, and ill-disguised references to his “pet snake”.

In response to the lurid claims, the former Constable argued the behaviour was part of the unit’s culture and that he had gone no further than others in the same unit. Further, he alleged he didn’t really understand the Code of Conduct and Ethics as set out in the NSW Police Force Code, nor the Harassment, Discrimination and Bullying Policy that he claimed he had not received training on. He also claimed he had not been counselled about the conduct or received any sort of warning in relation to it.

(Is Australia a workplace bullying capital? This report suggests we are.)

Commissioner Murphy outright rejected the reasoning that no training implies no obligation on account of the seniority of his role. He also dismissed the attempt to lay blame and shift responsibility onto the employer by alleging the toxic culture was part of the workplace for many years and noting he had never been reprimanded.

The Commissioner held there is nothing joke-like, nor anything funny about, making colleagues feel humiliated or uncomfortable by the “salacious outpouring of information about [Torres’] particular sexual proclivities without any regard to the sensitivities of his fellow workers…especially the young female officers who were the target of his sexual harassment and bullying.”

In concluding the dismissal was neither unjust nor unreasonable, Commissioner Murphy went on to find the decision was not too harsh either given the seriousness of the misconduct, notwithstanding the Constables distinguished career. Torres was found to have clearly engaged in “unacceptable conduct” in the workplace. It was held it “should go without saying, people are entitled to go to work and not be subjected to being regaled with the lurid details of another person’s sex life.”

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.

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4 thoughts on “Is toxic culture a legal defence for foul behaviour?

  1. Gang mentality cannot be an excuse for illegal/bad behavior. If it is, whistle blowers would have no cause to out corruption. In fact, complicit agents aid and abet by not enforcing legal and reasonable behaviors. Eichmann was hanged for making cruel NAZI operations run smoothly. He did not break NAZI law, but the laws of human decency. Workplaces must empower the righteous to be righteous and not protect the corrupt and abusive.

  2. That culture was alive and well in the early seventies when I was in the job. However by the mid eighties it had been effectively identified as unacceptable – in any event where was his commonsense? No sympathy on this one I am afraid

  3. This kind of behaviour has received enough press that I don’t believe that there is any excuse to justify this as acceptable. If fact, the introduction of the Bullying legislation bought these kinds of behaviours into the media spotlight again. So no, absolutely no excuse. In this day any person or workplace that think this is acceptable needs to take a look at themselves and get out of the dark ages. I didn’t know any better is no longer an excuse.

    (And much respect to the two men that have already commented that this is unacceptable. Good on you both.)

  4. Where were this guy’s collegues or superiors to have the moral courage to say ‘this behaviour is unacceptable…stop!! Torres ‘ actions are clearly archaic from a thankfully bygone era and has no place in the modern workplace (nor the old workplace for that matter). Unfortunately people like him still exist and we now have policy in place showing how his actions are wrong, and what needs to be done to make it cease, but without the workers around to take these dinosaurs to task for his actions immediately, momentum will grow and what becomes the norm becomes accepted….in his mind. Good on the young officer for having the courage to stand up and say this needs to stop and follow through with her action. It is just a pity Torres’ former collegues and superiors didn’t have that same courage in the first instance.

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