Mixing business with pleasure – It can all end in tears.

Posted by Malcolm Campbell on 05 August 2015

We spend many hours of our life at work and as a consequence,  with our co-workers.  We develop friendships inside our work environment, with some continuing on after working hours.  Some of these friendships will be left behind when we move on, whilst others will be “friends for life”.  What happens though, in the confines of the work space, when a friendship turns to romance or a sexual attraction is directed towards a co-worker, reciprocated or not.

In one recent Fair Work Commission case, the affair between a senior manager and subordinate highlighted the vulnerability of two employees when they commenced an office romance.  Apart from putting yourselves in the frame of office gossip, the career ramifications also need to be considered.   In this case the Senior Manager denied the affair when asked several times by his superiors over many months, if the rumours of a relationship were correct.  The affair had quickly moved from the office to a live-in relationship, before breaking down some time later and descending into legal action with an interim AVO (Apprehended Violence Order) being taken out against the Senior Manager by his partner, who was still his work subordinate. He then faced a charge of breaching the interim AVO by making contact with his ex-partner via phone. 

The pending criminal charge finally forced the Senior Manager to confess to his employer about the real nature of the relationship over the previous year.  His employer took the firm stance that the Senior Manager had breached six of seven company codes of conduct principles, suspended him on full pay, prior to issuing a letter terminating his employment.  Whilst the Senior Manager lodged an Unfair Dismissal claim, when heard, the Fair Work Commission ruled he had “fundamentally undermined” his employer’s trust and confidence and the dismissal would stand.  Senior Deputy President Jonathan Hamberger in the Fair Work Commission, said he had breached contractual requirements of disclosure and put himself and the subordinate employee in a situation where he had “fundamentally undermined the trust and confidence which is at the heart of the employer-employee relationship”.

In a case before the Victorian Civil and Administrative Tribunal, Judge Pamela Jenkins heard evidence which highlights another example of workplace relationships gone wrong.  It was alleged, an Employer made overt sexual advances over a four month period to an employee who did not return his advances.  The employee told her employer she was happily married, clearly and consistently rejected his advances and requested he maintain a professional relationship with her.   The ongoing sexual harassment involved verbal sexual suggestion, physical contact and text messaging.

The employee continued in her employment due to her need to keep her job and was attempting to keep the matter private.  The continued ongoing sexual harassment by her employer saw her eventually leave her job and needing to attend medial practitioners for treatment as she was experiencing ongoing health issues including panic attacks, post-traumatic stress and depression due to the behaviour of her ex-employer.  Judge Jenkins also found the employer had “behaved vindictively” when he failed to provide her with a reference.

In both cases above, workplace relationships have led to cessation of employment.  Personal and working relationships have been undermined and abused.   Lives and reputations have been left in tatters. 

In the instance where two employees have entered into a relationship, their employer should not need to become involved.  However, this is only the case if their performance or the employment environment is not affected should the relationship deteriorate or end.  Former Federal Sex Discrimination Commissioner Susan Halliday says “whilst employers who tried introducing ‘love contracts’ didn’t have a legal leg to stand on, she herself would pull an employee aside to tackle the issue head-on if it started affecting the workplace”.    Employers are left to juggle discrimination, sexual harassment and unfair dismissal in an attempt to deal with the workplace issues which result from a soured relationship carried out internally and externally between two employees.

Whilst workplace policies may not specifically mention or outlaw workplace relationships, employers must still be conscious of their responsibility to staff in relation to the policies set down in relation to employee behaviour towards other staff members during working hours and at work functions after hours.   Reminding staff of  what is considered appropriate behaviour prior to events where possibly alcohol is going to play a part can also assist, as well as circulating company policies and expectation in accordance with employment contracts.

Prior to considering dismissal, employers are urged to obtain legal advice as to the path that should be taken in dealing with the specific incident at hand.  Obtaining advice before a final decision is made  can save  the employer considerable time and money  in dealing with soured personal relationships.

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