20 B U S I N E S S T I P S Romantic relationship and the workplace – when does consensual intimacy cross the line? GOOD WORKPLACES AND teams are built on the foundations of strong relationships. At times those relationships can become complicated. This is particularly evident where romantic relationships exist or develop in the workplace or associated workplace environments. In today’s modern workplaces, the abuse of power and inappropriate conduct are appropriately, no longer tolerated. However, the realities of modern workplaces and relationships raises many questions: • In what circumstances is initiating a romantic or sexual relationship possible in the modern workplace, and when is it likely to be crossing the line? • Given how much time we spend at work, is the beginning of a relationship now confined to online apps, or can one hope to find romantic connection with a colleague or associate at work? • Where is the line in the workplace between consensual flirtation and/or sexual harassment? • Is it different when policies don’t expressly prohibit an employee from engaging in consensual intimate relations with other employees? • In such circumstances, is an amorous employee liable to be terminated? This fraught scenario of romance and intimacy in a workplace environment was recently scrutinised by the Full Bench of the Fair Work Commission (FWC / the Commission). The case considered the situation where a Professor (Dr Morrison) engaged in consensual intimate contact of a sexual nature with a student of the Australian National University (the University) while on a University retreat. The distilled facts were that the professor and a student disrobed late at night and proceeded to skinny dip and engage in consensual intimate contact. The University later terminated Dr Morrison’s employment as a result of the incident due to it conflicting with his duties as an employee of the University and its relevant policies. The original decision found the Universities decision to terminate Dr Morrison for this conduct (although consensual) was disproportionate and harsh under s 387 of the Fair Work Act (FWA). That decision was appealed by the University. On appeal, the Full Bench came to the opposite view finding that this conduct warranted Dr Morrison’s dismissal as he was in breach of his duties under the Universities relevant policies. In overturning the decision, the Commission considered whether, despite no express prohibition of intimate relations, Dr Morrison was in breach of his workplace polices and therefore his duties. Additionally, while the consensual act was never in dispute, the question being examined by the Commission was whether the Universities relevant policies were applicable, whether Dr Morrison was in breach of any of these polices and, finally whether any policy breach justified his dismissal. The Universities workplace policies outlined several duties which staff were obliged to follow concerning relationships within the workplace environment including with colleagues and students. These included: • A duty to declare a “close personal relationship” with a student if the staff member supervised or assessed them; • A requirement that the employee discharge their duties with care; • A requirement for employees not to improperly use their position to gain an advantage or cause detriment; • A requirement that employees avoid behaviour that may be reasonably perceived as emotionally threatening; and • That employees refrain from acting in a way that would unfairly harm the reputation or career prospects of other staff and students. The Commission found that Dr Morrison’s employment contract obliged him to comply with the Universities relevant policies. Therefore the only reasonable conclusion was that all his obligations as a senior academic with respect to a student applied, even if the duties of supervision had ended with the student. On that basis, it was found that Dr Morrison was in breach of his duties under the Universities policies. Furthermore, this was found to be a valid reason for his dismissal under section 387 (a) of the Fair Work Act. An important take away from this case is noting that the consensual act was not expressly prohibited but rather it was how that act, combined with other breaches By Warwick Ryan, Partner, Hicksons Lawyers including a failure to disclose the relationship, amounted to Dr Morrison’s actions being ‘incompatible’ with his duties as a professor within the workplace. So, the answer is yes, consensual intimacy can be found to be a breach of workplace policy and a valid reason for dismissal. However, like many aspects of workplace relations, ‘it depends’. While the Commission wished to avoid adopting any overly censorious, puritanical or wowserish approach, it’s clear that care and diligence must be taken when engaging in consensual intimacy in any form of work capacity, on work grounds, or if you are employed in a position of trust and responsibility. It is also clear that these considerations extend beyond relationships between colleagues and have implications for employees pursuing relationships with people they are supplying a service to (in this example, education). For employers, the best approach is to consider these complications in relation to your current policies and procedures. For employees, the best approach is to understand your role, obligations and employers workplace policies. Those workplace policies outline the manner and standard of behaviour that is expected in the workplace. Importantly, the absence of a specific workplace policy which allows or prohibits consensual intimacy (or anything for that matter) should not be interpreted as a green light. Time to switch to Single Touch Payroll Phase 2 The Australian Taxation Office (ATO) has been writing to employers to let them know that Single Touch Payroll (STP) Phase 2 is here. Employers that can switch but have not yet done so are urged to start reporting as soon as possible. As of 14 June, there are over 144,000 employers reporting STP Phase 2 information for over 1.7 million individuals. ATO Deputy Commissioner Emma Rosenzweig said that the 2019-20 budget expanded the data collected by the ATO through STP. This expansion of data collected is also known as STP Phase 2 and began on 1 January 2022. “For employees, STP and STP2 mean that pay, tax,and super information is reported to us each time they are paid. They can easily view their year-to-date tax and super information in ATO online services, or through their registered tax agent, whenever they want to check. CENTRAL COAST BUSINESS REVIEW JULY 2022
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