Australian telco Telstra has won its appeal against the ruling made in the Australian Industrial Relations Commission (AIRC), which had ordered it to reinstate Claire Streeter and pay her compensation for lost earnings, following its decision to sack her in the so-called ’sex-romp’ affair.
Telstra has sacked Miss Streeter in March 2007 following events that took place in a Sydney Hotel room after a work party and after claiming she sexually harassed three female colleagues by having sex (with two different men) just metres from where they were sleeping on a hotel-room floor. Telstra also claimed Miss Streeter had also sexually harassed a female colleague because she was naked in the hotel bath with two male employees in the presence of the woman, and that she didn’t leave the bathroom when someone wanted a pee.
When Miss Streeter took her case to the Industrial Relations Commission (AIRC) last August itupheld Ms Streeter’s claim that she had been unjustly sacked, and that Telstra must give her her job back. The commission said most of the conduct occurred well away from the workplace after, rather than during, a work function, and in a hotel room that was booked and paid for privately. It said that although the employees were upset by Ms Streeter’s conduct, her conduct was not directed to anyone else in the room, no-one in the room told her the conduct was unwelcome, the lights were off and she thought everyone else was asleep It was therefore not enough to constitute sexual harassment.
Ms Streeterâ€™s conduct was hardly without blemish; however I have determined that any misconduct on her part was not such as to warrant the termination of her employment. I have dealt with the issue of her honesty previously. On the whole I consider she is a woman â€œmore sinned against than sinningâ€.
A decision of the full bench of the AIRC, has now reversed that decision and backed Telstra, finding that Miss Streeter’s termination was not harsh, unjust or unreasonable. Miss Streeter is no considering whether to launch a further appeal in the Federal Court. The successful appeal means Telstra has no obligation to give Ms Streeter her job back or pay her compensation.
The Full bench found that Miss Streater’s dishonesty in not answering questions about the night, were not mitigated by the personal nature of events.
Whether the matters were personal or not, Ms Streeter had an obligation to answer Telstraâ€™s reasonable inquiries honestly. In the circumstances, we do not see that the necessary relationship of trust and confidence can be compartmentalised as his Honour has done…Ms Streeterâ€™s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed.
They concluded that:
We are not persuaded Ms Streeter has suffered any loss of confidence or self esteem as a result of the termination of her employment. We are also not persuaded the potential loss of employment opportunities for Ms Streeter through the Commission finding Ms Streeter was dishonest to Telstra is relevant to whether the termination of her employment was harsh, unjust or unreasonable.
Personally, I don’t think Miss Streeter did herself many favours in this one, but I also tend to come out, on balance, with the Judge in the first AIRC ruling that she is more sinned against than sinning.