Sexually explicit text messages between two colleagues in a relationship were found to be inadmissible in an adverse action case because it couldn’t be concluded that the “author would be likely to replicate in the workplace the content, tone or subject of text messages which were indisputably intended to remain private”.
Federal Court Justice Julie Anne Dodds-Streeton rejected an argument by a former TRUenergy (now Energy Australia) government and corporate affairs director that the text messages between managing director Richard McIndoe and former general counsel Amanda Barnett while they were in a relationship were admissible because they established the probability that the managing director “routinely used explicit, lewd, obscene, indecent and sexualised language about women and would do so in the workplace”
Thank god sanity prevailed and congratulations to Justice Julie Anne Dodds-Streeton! To have allowed texts from a consensual and unrelated relationship, albeit between work colleagues, to be used as evidence to support a sexual harassment claim would have been a travesty of justice and a poor reflection on the system that adjudicates on human rights matters in this country. Whether or not the claim by former Director Kate Shea that TruEnergy has a ‘sex culture” is eventually substantiated, it remains important that Australian workers retain the right to make lifestyle choices outside the workplace. If a worker chooses to participate in a consensual sexual relationship with another worker and the behaviour, however sexually charged or ‘lewd’, is conducted outside the workplace, it is no business of the employer or the employees. Of course, if the behaviour outside the workplace is, or has been illegal or unlawful, that is an entirely different matter.
When conducting iHR Australia’s ‘Custodians of Culture’ program I talk about two important related matters.
1. Workplace culture is a critical factor in the prevention of unlawful conduct; and
2. That leaders in organisations must remember that there needs to be an imaginary white line around their workplace, outside which some of their personal choice may best be kept.
In regards to these points, if McIndoe and Barnett had flaunted their messages to work colleagues in the workplace or forwarded these messages on to others in the workplace causing discomfort, then I would regard their behaviour as inappropriate and potentially unlawful. However, according to Justice Dodds Streeton, this has not been the case. She suggests that the sexually explicit text messages would have been admissible if McIndoe had circulated them “on the office email, broadcast them in the office or otherwise made them known to persons in the workplace” or if they had contained “sexual observations about other persons or actual or proposed sexual or indecent conduct in the workplace”. But in her view this was not the case.
It is my view, however, that leaders must remember that their behaviour does affect how others in the workplace behave. What they say and don’t say in the workplace sends out a message about what’s ok or not ok at work. Managers, especially those in senior roles, are ultimately custodians of culture. iHR Australia’s many years of conducting workplace investigations has clearly demonstrated that workplace culture, the way we do things in a workplace, is a key risk factor in claims of harassment, discrimination and bullying.
Furthermore, senior leaders must remember that recorded public behaviour outside the workplace can also set a perception about that leader’s capacities, boundaries and style. However, despite the views of some leadership purists, I believe great leaders have the ability to adjust their behaviour depending on the circumstances in which they find themselves. They have an ability to understand their environment, assess their situation and behave appropriately.
Yet, whatever scholars of leadership might believe, Justice Dodds Streeton has made it clear that courts respect the right of an individual to have a personal life. If fellow workers are mutual and consensual participants in a sexual relationship within their personal domain, the court will be reticent to allow their actions and behaviours to be the business of a court.
An interesting question is: what difference would it make if a worker used a phone owned by the organisation to send such messages?