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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