Can you be dismissed for having a workplace romance?
Being dismissed for having a workplace relationship or romance isn’t the typical fairy tale ending that we see in the movies. But it’s a reality for some employees who aren’t aware of the many risks of engaging in a work related romance.
Studies reveal that over a third of people have had a job romance, with many ending in a happily ever after. But at the same time, workplace romances often pose the risk of workplace conflicts of interest. And in the age of MeToo, they can sometimes blur the line between what’s considered acceptable courtship behaviour, and what may be deemed sexual harassment. In this article, we answer all the key questions you may have about job romances. And we share a few real-life cases of workplace romances that ended in dismissal – including one that ended in a very fiery confrontation.
Australian employee dismissed for workplace relationship has lived happily ever after
They say love conquers all. And in the case of Brisbane businessman Gary Lyon, that includes being dismissed for taking part in a romance at work. Mr Lyon is now happily married to his wife of 12 years and has an 11-year-old daughter thanks to his workplace romance. But it certainly didn’t start off in fairy tale fashion.
Mr Lyon was 41 and working as an operations manager for a business that made doors and windows when he met Tamra, who was 12 years his junior. She had joined the company as a project co-ordinator, and after a few months in the job, the duo hit it off. “I always liked her and she made it known that she liked me as well,” Mr Lyon told the BBC. “It went from there.”
In the early days of the relationship, the future Mr and Mrs Lyon decided to keep their romance a secret. But soon, they let everyone know. “You don’t believe it’s an issue for other people, but it transpires that it is, and you don’t see why, because it doesn’t impact your work,” he says. “You spend a lot of time with people at work, so you get to know them quite well.”
Mr Lyon is dismissed for workplace romance
Mr Lyon’s fairy tale job romance soon turned to tragedy about three months into his relationship with Tamra. That’s because he was called into a meeting where he was dismissed – a decision that Mr Lyon characterized as “very arbitrary.” This was especially because Tamra wasn’t dismissed for her part in the romance and relationship.
Mr Lyon said that his former employer lacked a clear workplace policy concerning job romances. And he put his dismissal down to its “very archaic view of the world.” But it was all’s well that ends well for Mr and Mrs Lyon, who now operate their own business. And looking back on their job romance, Mr Lyon feels it was simply “bizarre” that he was dismissed for it.
“Should managers be banned from dating subordinates? Not if it is consensual,” said Mr Lyon. “You can’t choose where you find love, so why penalise both parties by firing one of them?” And if two of his employers were to kindle a job romance at his business, Mr Lyon says he wouldn’t have a problem with it. “It wouldn’t bother me in the slightest,” he said. “As long as it didn’t affect their work.”
The risks of having a workplace romance or relationship
While some employers like Mr Lyon may not be concerned about employees engaging in romances and relationships, many are. And one of the reasons why is the potential risk of conflicts of interest arising. This risk can particularly arise if one person in a job romance has the power to influence the other person’s career advancement. Or if they are responsible for conducting their performance appraisals.
While it’s not illegal to engage in such a conflict of interest, it may breach your employer’s policy or your employment contract. It’s therefore wise to check if you are required to make your job romance known to your employer.
When a relationship can become sexual harassment
Another key risk of engaging in a work related romance or relationship is the potential for sexual harassment. This could take place even in a consensual job romance. And the perpetrator isn’t the only one who could face legal repercussions. Under the federal Sex Discrimination Act 1984, an employer could also be held as vicariously liable. Just because a work related romance is consensual, it doesn’t mean that certain actions by either party could be deemed as sexual harassment. So it’s important to remember what the legal definition of sexual harassment is.
Definition of sexual harassment
Sexual harassment is any unsolicited sexual conduct that could be reasonably interpreted by the person receiving it as offensive, humiliating or intimidating. To better understand how sexual harassment could come about in a consensual job romance, let’s look at a hypothetical example:
On several occasions, a young female worker and her male manager participated in consensual sexual activity. The supervisor also engaged in other sexual behaviours, some of which were deemed acceptable by the court.
Nevertheless, the court determined that certain actions, such as offering the woman sexualized presents like lingerie, delivering sexually-charged text messages, and trying to share a bed, constituted unwelcome sexual harassment.
Can you ask an employee out on a date?
Asking a colleague out on a date is completely legal. However, it’s important to remember that an attempt to initiate a job romance could be deemed as sexual harassment. This could be behaviour like, for instance, repeatedly asking a colleague out even though they’ve stated they aren’t interested. Or continually making comments about their looks that make them feel uncomfortable.
“You’re nothing but a f**king mole:” How work romances can unravel and end in dismissal
While most job romances are drama free, some aren’t. And this is often made worse by the fact that it took place in the workplace, where the prospect of dismissal looms. The unfair dismissal case Alan Baker v G4S Custodial Services Pty Ltd  is an example of how a job romance can end in the worst of ways. It involved Alan Baker and “Ms S”, who had a consensual two-week affair while working as prison officers at Port Phillip Prison in Victoria.
In October 2013, Mr Baker ended the brief job romance via a text message to Ms S, and that’s when things started to go south. Ms S didn’t want the relationship to end. And in November, she initiated multiple interactions with Mr Baker at work in the hope of rekindling their job romance.
“I’ve got a dark side, you had better be careful:” Job romance descends into fiery confrontation
These interactions, however, were far from cordial. And Ms S later made a complaint to the prison’s management, in which she shared what she claimed Mr Baker said to her.
“[Mr Baker] looked in my direction shouting ‘There she is, the one with the big mouth,’” said Ms S in her complaint. “I replied ‘yes’ and kept walking. [Mr Baker] then shouted ‘you’re nothing but a f**king mole.’” Ms S said that this language was particularly offensive as it took place in front of co-workers. So a few minutes later she confronted her former lover about abusing her in public. But according to her, Mr Baker’s response was far from placatory.
“He responded with ‘you are in big trouble. I’m gonna find out where you live and come around and get you’. Followed by ‘You are nothing but a tunnel mole. You have slept with most of the officers and lots of criminals. I’ll make sure you lose your job.’” Ms S claims that Mr Baker then leaned into her personal space and issued further threats.
I’ve got a dark side you have to be careful
“[Mr Baker” leant over close enough so that his moustache was touching my face and said ‘I told you that I’ve got a dark side, you had better be careful’. He then screamed at me ‘f**k off.’” Ms S also claimed that once she got home, she received a phone call from Mr Baker, who demanded to speak to her husband. She claimed that he said “I can do anything I like, I have got connections. I told you I had a dark side.” She also claimed that Mr Baker rang for a second time, and when her husband answered, told him “Your wife is a f**king sl*t.”
Mr Baker makes sexual harassment complaint
In response to Ms S’s complaint to management, Mr Baker filed one of his own alleging that she had sexually harassed him. This was because of her unwanted and unwelcome attempts to rekindle their relationship. However, the prison deemed that Mr Baker’s claims weren’t proven. And it decided to dismiss him for the “abusive and threatening” language he used against Ms S. In response, Mr Baker made an unfair dismissal application with the Fair Work Commission.
At his unfair dismissal hearing, Mr Baker admitted that he had used profane and abusive language against Ms S. But he denied having ever made any threats against her. He also claimed that Ms S also used abusive language toward him, telling him “You are nothing but a f**king c**t and I hate you!”
Mr Baker wins unfair dismissal case
The Fair Work Commission found that Ms S’s claims that Mr Baker had threatened her were unsubstantiated. And while it accepted that Mr Baker had used abusive language against Ms S, the Fair Work Commission ruled that this didn’t provide a valid reason for dismissal.
It was found that Mr Baker “did not want to have any continuing relationship with Ms S.” And that his conduct was to ensure “that Ms S understood that the affair had ended and would not be resumed.” The Fair Work Commission therefore ruled that Mr Baker should be reinstated to his position at the prison.
Can an employer ban workplace relationships and romances?
There are clearly risks posed by workplace interludes. However, Australian employers in the vast majority of circumstances aren’t legally entitled to ban consensual relationships between employees. This is because employers can only mandate that their employees follow lawful and reasonable orders.
It would be well outside the bounds of an employer’s authority to try and ban romantic relationships among employees, as this would unjustly intrude upon their personal lives.
Do you need to declare your romance or potential romance to your employer?
This depends on the specific circumstances. One instance where an employee may be obligated to disclose their workplace relationships is if it presents a conflict of interest.
Many companies have policies in place that obligate employees to declare any potential conflicts of interest. And some even prohibit couples from being in the same team or reporting line. It’s therefore essential to check your workplace policies and employment contract for any such obligation.
Can you be fairly dismissed for a workplace romance?
There are many factors the Fair Work Commission will consider when deeming if an employee was fairly dismissed for engaging in a job romance. This includes the nature of the job romance. The employer’s workplace policies and culture. And also, if the job romance is deemed to be detrimental to the interests of the employer.
A dismissal, however, may be deemed fair if the job romance led the employee to:
- Engage in a conflict of interest that transgressed company policy.
- Not perform their duties due to taking part in sexual activity in the workplace or during work hours
- Sexually harass a colleague.
Have you been unfairly dismissed?
If you have been unfairly dismissed or mistreated at work, If you have a complicated personal situation or conflict at your workplace get advice. A Whole New Approach can help. We are experts in helping Australian workers seek redress through the Fair Work Commission. All employee rights issues, casual employment concerns, toxic workplace culture call. For the last 20 years, our highly experienced team of employment relations experts have helped over 16,000 workers fight for their jobs and rights.
Call us today on 1800 333 666 for a free and confidential conversation.
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