In John Keron v Westpac Banking Corporation  FWC 221, Deputy President Binet confirmed that the Fair Work Commission (Commission) recognise and enforce the increased scrutiny and higher standards of the community regarding what constitutes consent for physical and sexual interactions in work related environments.
The employer, Westpac Banking Corporation (Westpac), terminated the employment of Mr John Keron, a Senior Relationship Manager at Westpac's Fremantle Commercial Banking Branch, on 13 April 2021, following two incidents that occurred after a Westpac networking function that were found to be in breach of Westpac's policies. Mr Keron subsequently brought an unfair dismissal application challenging his dismissal before the Commission.
By way of background, on 10 March 2021, all Western Australian business banking staff were required to attend an offsite professional development workshop at Optus Stadium that ran from 8:30am to 4:00pm. Following the workshop, a non-compulsory social event (known as the "Sundowner") was arranged for all employees to attend from 4:30pm to 6:30pm.
Westpac had arranged a bar tab and finger food for the duration of the Sundowner. All employees were wearing smart casual clothing (i.e. not uniforms) and there was no Westpac signage present, the only identifiable item being that staff were required to wear a wristband to access the bar tab. Mr Keron and a group of other Westpac colleagues remained at the location of the Sundowner after the bar tab was closed at around 7:00pm, where he was described as appearing intoxicated.
The first incident involved Mr Keron groping the lower buttocks of a female colleague, having reached towards the middle part of her lower buttocks with his hand and then moved his hand in an upwards direction towards her waist over a period of approximately 3 seconds.
The second incident related to Mr Keron swearing at another colleague, because she had urged security at a casino to deny him and another colleagues entry on the basis that they were drunk and had already been refused entry.
Westpac's internal investigation found that the first allegation was substantiated and that the second allegation was partially substantiated, on account of CCTV footage and witness evidence confirming same. As a consequence, Mr Keron was terminated for serious misconduct, having been found to have breached the following Westpac policies (Westpac Policies):
- Discrimination, Harassment and Bullying Policy;
- Sexual Harassment Policy; and
- Westpac Code of Conduct.
Despite Mr Keron's unblemished employment record during his more than 35 years of service, he was terminated without being subject to a show cause process with Westpac having simply provided him with a letter of termination on 13 April 2021 following the completion of the investigation report on 8 April 2021. Mr Keron did however receive payment of 5 weeks salary in lieu of notice despite his summary dismissal.
Mr Keron was also charged with unlawful and indecent assault on 2 April 2021 in relation to the first incident, and was subject to a criminal hearing on 16 November 2021, but the Court's decision had not yet been handed down at the time of the Commission's decision.
Findings of fact
In her judgment, Deputy President Binet noted the inconsistencies in each of the particularisations of the first incident, in comparison to both the witness evidence and what could be observed in the CCTV footage. While she was not satisfied that the contact extended to the intimacy and duration described in Mr Keron's termination letter, the Deputy President did accept that at a minimum, Mr Keron had placed his hand on the colleague's lower buttocks in an intimate manner and then moved his hand upwards towards her waist.
In regards to the second incident, the Deputy President found that Mr Keron had said to Ms Smith words to the effect of "You fucking idiot, why did you do that?" and "You're a bitch".
Valid reason – increase in community expectations
In regards to the first incident, the Deputy President made the following observations regarding the community's increasing expectations in relation to physical and sexual interactions:
 … [T]he bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the broader community. An even higher bar has been set for interactions occurring in work related environments. The media coverage and social discourse in relation to these issues has been extensive, placing those in Australian workplaces on notice that their behaviour will attract greater scrutiny and face higher standards than in the past. While Witness A’s conduct of itself may well have constituted a breach of the Westpac policies it does not of itself provide a defence for Mr Keron’s behaviour.
 Mr Keron was aware that Witness A was a junior work colleague and a married mother. In these circumstances he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature. Even more so when the conduct was occurring at a time when both parties were known to each other to be intoxicated and their judgement potentially impaired. The fact that Witness A has patted Mr Keron on the shoulder or back does not constitute an invitation for him to touch her in a sexualised manner or intimate location. Mr Keron himself acknowledged in cross examination that uninvited touching of a woman on her buttocks had the very real potential to cause significant distress to the woman. It is clear by her actions in subsequently reporting the incident to her colleagues, her employer and the police that the conduct was unwanted and unwelcome and made Witness A feel humiliated and offended.
The Deputy President also noted that while Witness A’s conduct of itself may well have constituted a breach of the Westpac Policies, it does not of itself provide a defence for Mr Keron’s behaviour. Mr Keron was aware that Witness A was a junior work colleague and a married mother. In these circumstances he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature. Even more so when the conduct was occurring at a time when both parties were known to each other to be intoxicated and their judgement potentially impaired.
In relation to the second incident, the Deputy President found that Mr Keron's interaction with Ms Smith was unwelcome, and that any reasonable person would have considered his behaviour offending, humiliating, and threatening. The Deputy President also acknowledged that while Ms Smith's behaviour may have annoyed Mr Keron, it did not invite the response elicited.
The Decision – was there a sufficient connection with his employment?
Mr Keron argued that the conduct for which he was dismissed did not occur in the course of his employment and therefore could not form a valid reason for his dismissal. In particular, Mr Keron noted that he had no working relationship with either Ms Smith or Witness A and that neither were now employed by Westpac.
The Deputy President acknowledged that such behaviour must ordinarily have some work related connectivity and that only in exceptional circumstances will an employer have the right to extend its supervision to the private activities of its employees. More specifically, the Deputy President referred to the recent Full Bench decision of Newton v Toll Transport Pty Ltd  FWCFB 3457, which outlined the circumstances in which out of hours conduct might constitute a valid reason for dismissal:
- the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
- the conduct damages the employer’s interests; or
- the conduct is incompatible with the employee’s duty as an employee.
The Deputy President also noted that it is not necessary for the relevant behaviour to occur at the same physical location as the workplace or work function in order for there to be a sufficient connection with the employment.
The Deputy President ultimately concluded that Mr Keron and the female colleague were only at the location of the Sundowner, and socialising, because they had attended the workshop and the Sundowner in the course of their employment. Consequently, it was held that the first incident was sufficiently proximate to the workplace and Mr Keron's employment, therefore forming a valid reason for his dismissal. The second incident, however, did not constitute conduct in connection with Mr Keron's employment, given the lack of connection to the work events and because Mr Keron was unaware at the time that the female was a colleague.
In the event that the Deputy President was wrong about her conclusion that the first incident occurred during the course of Mr Keron's employment, the Deputy President also concluded that the first incident had sufficient connection with the workplace to form a valid reason for dismissal. More specifically, the Deputy President found that the incident had:
- impacted on Witness A's productivity, due to her resultant absences from work;
- caused Westpac to bear the cost of directing resources to support the mental health of both Witness A and Mr Keron;
- created media interest in the hearing, which suggested that the incident had entered the public domain and confirmed the potential reputational harm to Westpac;
- impacted on Westpac's ability to allocate work or effect career progression or relocations, due to the potential interactions between Witness A and Mr Keron in the workplace; and
- impacted on the productivity of other Westpac employees, in particular, their preparedness to attend such functions and consequently the positive impact on morale and networking such events are intended to achieve.
The party is over – is this the end of work drinks?
Having noted Mr Keron's significant period of service and that his conduct appeared to be a direct consequence of his alcohol consumption that evening, Deputy President Binet was critical of Westpac's decision to stage a networking function in a "sports bar" with free alcohol, as such a decision was not reflective of it's purported "serious commitment" to creating a safe, diverse and inclusive workplace with professional interactions.
The Deputy President even went so far as to say that employers should consider whether alcohol is necessary or even appropriate at work-related events, given that it is often associated with poor decision-making, having noted that alcohol can no longer be used as an excuse to touch another intimately. Specifically, the Deputy President advised that if alcohol is a necessary element of a work function, the employer should ensure that its employees are safe during the course of the event, that there is a clear conclusion to the event, and that the safe departure of employees is facilitated.
Up to date policies that accurately reflect an employer's position in relation to sexual harassment, harassment, discrimination, and behaviour more generally (both at work and potentially outside of work) should be maintained by employers in an effort to prevent such incidents from occurring. Employers should also ensure that all employees receive the requisite training and are aware of the employer's expectations regarding their behaviour both generally, and at such functions.
If you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Matthew Giles
We would like to acknowledge the contribution of Ashleigh O'Connor (Solicitor) to this article.