Sexual Harassment dismissal – policy training saves employer

One Minute Summary

A manager was terminated after sending multiple messages to a much younger employee who worked at the same store. These included declarations of love, requests for a date and various emojis’. He also commented on her appearance at work and kissed her on the cheek at the Christmas party.
The manager defended his position stating this was how he communicated to all his friends and relatives and that his conduct was not sexual in nature.
The manager had undergone training about 8 months before the incidents began.
The Deputy President accepted the behaviours were not explicitly sexual in nature, but the various behaviours combined exhibited ‘conduct of a sexual nature’.
The Deputy President also stated that just because the complainant did not encourage the behaviour and did not respond to it negatively did not make the conduct welcome.

Hunter Employee Relations recently conducted a sexual harassment investigation for a client. In the initial stages of the investigation, which involved interviewing the complainant (and viewing received text messages she had received) and several witnesses and the Supervisor, it appeared as though the key elements of sexual harassment had taken place. However, once we interviewed the (very surprised) male employee the story changed considerably. The information (including a much larger selection of text messages she had sent to him) indicated that he believed a relationship was developing between them.

A key element of that investigation involved looking at the Respect at Work Policy and the related training that had been delivered and whether there had in fact been a breach.

In the following case the Respectful Workplace Policy, the Code of Conduct and the regular employee training turned out to be crucial components to protect the employer from an unfair dismissal finding.

These documents and the associated training make it very difficult for a person to state “I did not know my behaviour was sexual harassment’. This is a common response when employees have not been trained and often leaves the employer in a difficult grey zone especially where behaviours are not at the extreme.

Mr Pushik (63) was employed as the Fruit and Veg Manager in a supermarket with one of major grocery retailers. He had been employed with the retailer for 17 years. He was summarily dismissed after sexually harassing a 29 year old colleague who also worked in the store but did not report to him.

The behaviours included:

Multiple messages through Facebook Messenger making comments about her beauty, asking her out, heart emojis, emojis of two people kissing, declaring his love for her, asking her to be his valentine, pictures of roses and lips. (She did not respond to the messages)
Statements made in person about her appearance when working at the store.
Rushing up to her at the Christmas party, kissing her on the cheek and telling she looked very beautiful. (She responded by pushing him away telling him she was very uncomfortable.)

This behaviour occurred from before Christmas 2024 up until April 2025. She made a complaint mid-April 2025. Thereafter an investigation took place and Mr Pushik was formally interviewed. On 1 May Mr Pushik was with a ‘Show Cause’ letter as to why he should not be terminated. A week later on 8 May he was summarily dismissed.

Mr Pushik contended that his termination was harsh, unjust and/or unreasonable. He did not dispute his conduct but stated that he regularly sent similar messages to friends and relatives all the world on social media.

Mr Pushik states that if his conduct was unwelcome that the complainant could have blocked him. He also stated that his behaviour was not prohibited under the employer’s Respectful Workplace Policy or the Code of Conduct. This was based on his view that his advances were not sexual in nature. He stated he had not sent sexually explicit photos to distinguish his behaviour from that covered in the Policy and in the training he had received.

The complainant did not respond to Mr Pushik’s messages and rejected his in person physical advances.

She told the Commission it was an incredibly difficult decision to come forward and report his conduct. She was worried about the impact on her employment. She did not feel she could block him because she felt intimidated as he was much older and in a managerial position. As an international student she did not want to become involved in any legal process as well as maintaining her studies and managing the emotional stress of the situation. However, after receiving messages from Mr Pushik overnight and becoming increasingly reluctant to attend work she reported the matter to a senior manager in the store.

During proceedings the employer stated a significant factor in coming to a decision to terminate was Mr Pushik’s lack of remorse about his conduct. He denied he did anything wrong, that his conduct was inappropriate and offered justifications stating this was how he interacted with others. This factor indicated, that if he was allowed to remain at the workplace, he would likely undertake similar behaviour in future.

Mr Pushik had last completed Code of Conduct training in February 2024 – about 8 months before the initial events. This included training on the Respectful Workplace Policy, bullying and harassment. The employer required all employees to undertake refresher training every 1 to 2 years. Mr Pushik had received the training several times.

Deputy President Grayson reviewed Mr Pushik’s employment contract where he had agreed to comply with all policies. She also reviewed the content of the training which was focussed primarily on conduct of a sexual nature.

In reviewing the training and comparing it to Mr Pushik’s behaviours the Deputy President stated ‘I accept that none of the conduct in question was overtly or explicitly sexual in nature. However, I find that sending the messages … the repeated requests for a Date and making statements about her Appearance constituted “conduct of a sexual nature” These messages were sent in the context of Mr Pushik’s unrequited desire to enter into a romantic relationship”

The Deputy President noted that the complainant did not encourage or solicit any of the conduct nor did she respond to it. She also stated that ….’ just because someone does not contemporaneously complain that conduct is unwelcome, does not make the opposite true.’

The Deputy President also stated, ‘I find that a reasonable person would have anticipated the possibility that ...the complainant… would be offended, humiliated or intimidated by the conduct’ .

The Deputy President dismissed the unfair dismissal application lodged by Mr Pushik.

Commentary

Many policies covering workplace sexual harassment focus on what are clearly overtly sexual behaviours. In this case the behaviours exhibited were not overtly sexual in nature. It’s become apparent from other matters we have dealt with that most sexual harassment is not at the extreme level – which often gets the media publicity. And this can then give the impression to employees that lower types of behaviour are not actually sexual harassment.

Interesting to consider how non workplace cultural background may be an issue in this case. We are not told of Mr Pushik’s cultural background, but some cultures are much more physical than others in a platonic manner. The complainant was a foreign student. Her culture may also have become a factor restraining her from lodging a complaint. However, this is where the policy and training become very important – both in respect to clearly outlining what constitutes sexual harassment and how an employee can make a complaint.

An interesting point to note here is that employers too often find out sexual harassment has taken place when they receive the Australian Human Rights Commission application together with the solicitor’s le$$er of demand. No complaint was ever made at the workplace.

A key element of this case was the Respectful Workplaces Policy and the Code of Conduct – and the associated training. Without the training the outcome could well have been different. This is for two reasons – firstly Mr Pushik was 63 years of age. At this age a dismissal can be justified and harsh at the same time – because of the age factor alone. Secondly, it’s up to the employer to ensure employees are trained in the policies if they want to rely on them. Simply having a policy is not enough.

If you require assistance with updating your Respect at Work policy or employee briefings/workshops please contact Hunter Employee Relations.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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