The dismissal of a Coles staff member who sent explicit pictures to his manager has been upheld by the Fair Work Commission.
Although the commission found Jay Higgins did not engage in sexual harassment by texting his boss ‘d*** pics’, the watchdog did agree he had violated the supermarket chain’s code of conduct.
Mr Higgins began working in the bakery at Toowong Coles bakery on the Sunshine Coast in 2014, according to the commission’s judgement.
He claimed he soon struck up a friendship with his manager, who he became friends with on Facebook and chatted to on the phone.
The dismissal of a Coles staff member who sent ‘d*** pics’ to his manager has been upheld by the Fair Work Commission
In September 2016, while chatting to his boss, Mr Higgins texted him ‘a picture of a hand bandaged, where the thumb was replaced with a penis’ followed by an image of a penis caught in a bike chain.
Despite replying ‘great d*** pic’, the manager said he was shocked by the text messages and reported the pictures to the company.
Mr Higgins was then fired from his position for ‘a serious breach of the code.’
He argued that his dismissal was ‘harsh, unjust and unreasonable’ because he considered his manager to be a personal friend who he often spoke to.
Although the commission found Jay Higgins did not engage in sexual harassment by texting his boss ‘d*** pics’, the watchdog did agree he had violated the supermarket chain’s code of conduct (stock image of a Coles supermarket)
The manager strongly denied having a personal friendship with Mr Higgins, but the commission found that a ‘personal relationship existed.’
Mr Higgins said the manager’s amused response to an explicit image he had sent him a year earlier prompted him to send others.
The manager denied finding the picture of the bandaged hand funny, but admitted under cross examination that he was entertained.
‘I am of the view that the more likely scenario is that Mr Lacey did find the first picture funny, and is attempting to make excuses and distance himself from the situation,’ commissioner Chris Simpson wrote.
Mr Higgins began working in the bakery at Toowong Coles bakery on the Sunshine Coast in 2014 (stock image)
‘If Mr Lacey did consider the first image to be inappropriate, there is no reason why he could not have responded in the way that he responded to the following messages, i.e. ‘no more inappropriate texts Jay’.’
Mr Simpson found that the manager did not find the images offensive – and because Mr Higgins stopped sending explicit messages once he received a negative response – it did not fall within Coles’ definition of sexual harassment.
However, ‘sending images of such an explicit nature… is clearly conduct inconsistent with the requirement… to treat others with dignity, courtesy and respect,’ the commission found.
‘I have concluded that Mr Higgins’ dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed,’ Mr Simpson wrote.
Despite replying ‘great d*** pic’, the manager said he was shocked by the text messages and reported the pictures to the company (stock)