Australia’s largest communications company, Telstra Corporation Limited, has said it will appeal a decision by the Australian Industrial Relations Commission (AIRC) that it pay compensation to, and re-employ a woman it fired for having sex with two colleagues following a belated Christmas party in February.
What at first glance might appear to be just another ribald Christmas party story actually has greater ramifications and serves to highlight how much control an employer can exert over an employee outside of the workplace.
While columnists such as Andrew Bolt, in his BoltBlog on the Melbourne Herald Sun web-site might like to take the moralistic and puritan high-ground, labelling the decision, “a funky call by the IRC”, there are greater issues that need to be examined.
In his Blog, Mr Bolt defends Telstra, stating, “why is it Telstra’s responsibility to find room for a worker whose colleagues include women who understandably regard her conduct as, well, sinning, and want nothing to do with her?”
If Mr Bolt read the full decision of the IRC he failed to take into account argument lead by Counsel representing the Telecommunications giant, and equally failed to note to what degree he who pays the piper really does call the tune when it comes to employment.
If he had, I doubt whether such an experienced journalist as Mr Bolt, would have been so quick to leap to the defence of one of Australia’s largest corporate employers.
If Telstra had been allowed to get away with dismissing the worker in this instance it would have been another erosion of workers rights and given Telstra unprecedented powers to intrude into the rights of workers away from the workplace.
Carlie Streeter, who was previously employed as a retail sales officer at the Corporations store at Westfield Shopping Town, Miranda, took the telecommunications giant to the AIRC to get her job back after being summarily dismissed on March 13 this year.
Telstra claimed Ms Streeter had sexually harassed a fellow Telstra employee, Ms Daniela Hyett, “by being naked in the bath of a hotel room with other naked Telstra employees in Ms Hyett’s presence.”
It further alleged Ms Streeter had “sexually harassed fellow Telstra employees Daniela Hyett, Jennifer Barrett and Alana Andrews by engaging in sexual intercourse just metres from where they were, with two different men on two occasions in their presence.”
By these acts, Telstra claimed Ms Streeter had breached Section 28B (2) of the Sex Discrimination Act 1984 (SDA) and also claimed that her conduct amounted to an act of indecency pursuant to s.61N of the Crimes Act 1900 (NSW).
At the same time Telstra skilfully distanced itself from the corporate liability requirements under section 106 of the SDA, whereby Telstra could be liable for Ms Streeter’s conduct if it were held that it occurred in connection with its employment of her.
Over four days Senior Deputy President Hamberger heard testimony from Telstra Acting State Manager Marika Coinoglou, Human Resources Advisor Mary Kalamaras, as well as Telstra Shop Miranda employee’s Daniela Hyett, Jennifer Barrett, Kristan Forner and Alana Andrews.
The AIRC was told that staff at the shop had planned to hold their Christmas party in December 2006, but could not arrive at a date which suited everyone. The then Miranda Store Manager received a promotion and it was decided to hold a joint Christmas/farewell party in February.
The event was organised by Ms Hyett with the group meeting for drinks at Northies Pub in the bayside suburb of Cronulla, before moving on to the Naked Grape restaurant.
The Commission was told that Mr Aakash Sharma, another retail sales officer at the Miranda Telstra Shop, booked a room at Rydges Hotel in Cronulla, and Ms Hyett gave him her credit card to pay.
However, testimony given later by Ms Hyett was that she asked Ms Streeter to pay $60 towards the cost of the room.
According to Ms Hyett, the intention was that Ms Andrews, Ms Barrett, Mr Sharma and Ms Hyett would stay overnight at Rydges.
Ms Hyett told the IRC that she mentioned it to others in case they wanted to drop by before going to Northies and have a drink with them, or to get changed.
Telstra Christmas party
Despite the fact that the function was not being organised or paid for by Telstra (Telstra contributed $25 per person) Ms Hyett asked for Telstra corporate rates at the hotel but was told by the receptionist that those rates were not applicable on Saturday nights.
The group attended the Christmas/farewell function and after some returned to Northies for more drinks. After joining the group for a while Ms Streeter then went to a local club known as “Fusion”.
According to testimony from Ms Andrews, she and Ms Hyett went to bed in the Rydges hotel room at about 11:30 pm to midnight.
At about 12:30 am or 1:00 am Ms Barrett went to the room. Ms Andrews said she asked her if she wanted to sleep “top to tail’ in her bed, but she said no, and “set herself up on the floor”. The three of them then went to sleep.
Shortly after, according to Ms Andrews’s testimony, Mr Hatzistergos, Mr Sharma and Nicole Hanlin (a former employee at the Miranda Shop who had been at the dinner) arrived. At some stage the three of them went and had a swim. They then returned at about 2 or 2:30 am and got in the bath together.
Ms Streeter arrived a short time later, and joined the others on the balcony.
According to Ms Andrews, “she appeared very drunk and was walking funny. She was slurring her words.”
The group eventually settled down and went to sleep.
Ms Andrews woke a short time later. She looked up because she heard “noises” and saw Ms Streeter and Mr Sharma having sexual intercourse.
Ms Andrews told the Commission she was very distressed. “I didn’t know what to do. I looked away and tried to block it out and pretend it wasn’t happening. I could not block it out. I tried not to move at all or make any sound. I just couldn’t believe it was happening. I couldn’t believe how disrespectful they were. I didn’t say anything. I didn’t feel that I could. I felt very awkward and embarrassed, and didn’t want to embarrass them or make a scene by saying anything.”
According to Ms Andrews, after about ten minutes, Mr Sharma and Ms Streeter went to the bathroom for some time. She could hear the shower running and thought she could hear them having sex again. When they came out of the bathroom she closed her eyes. A short time later she heard Ms Streeter vomiting in the bathroom and Mr Sharma helping her.
Ms Hyett said at one point she woke up and needed to go to the toilet. She walked to the bathroom and found the door was locked. She knocked on the door and Ms Streeter asked who it was. On being told that Ms Hyett wanted to go to the toilet, Ms Streeter opened the door.
According to Ms Hyett, Ms Streeter had a towel wrapped round her. Mr Hatzistergos and Mr Sharma were in the bath. Ms Streeter closed the door, remaining inside the bathroom, while Ms Hyett urinated. Mr Hatzistergos said to Ms Streeter, “come and get in back in the bath so I can lick your pussy”. Ms Streeter giggled, said “fuck it”, dropped her towel on the floor and got back in the bath. Ms Hyett finished on the toilet, washed her hands and went back to the bedroom.
Ms Hyett said she felt very embarrassed and, “had stage fright because there were three people in the toilet watching me. I felt uncomfortable”.
Despite feeling embarrassed by the others presence, Ms Hyett said she did not tell Mr Sharma, Mr Hatzistergos and Ms Streeter to get out of the bathroom because she did not want to see them naked.
Ms Hyett also indicated that she did not feel sexually harassed by Ms Streeter.
In further testimony to the Commission, Ms Hyett said in the morning she told Ms Streeter, “I want your share for staying in the room. Carlie said words to the effect of: what for sleeping on the floor? I was angry that after what she had done in a room full of people, Carlie would say that. I replied “No for making us watch you fuck each other all night.” Carlie then said “Don’t tell anyone.”
“I was beyond anger. I was livid,” she said
Sex was not at a work function
In her application, Ms Streeter alleged sexual misconduct did not occur at a work related function.
She further claimed the party at the Naked Grape restaurant was more in the nature of a party organised by a junior Telstra employee (Ms Hyett) for a group of other Telstra employees, than a Telstra work related function.
Further, the alleged conduct giving rise to the termination of employment occurred at the Rydges Hotel. Consequently, even if the Commission were to find that the Naked Grape dinner was a Telstra work related function, the Commission would also need to be satisfied that events at the Rydges Hotel were part of a Telstra work related function.
According to Mr Mr K Durant who represented Ms Streeter, the room had been booked on Ms Hyett’s credit card and in her name, had only been booked for Ms Hyett, Ms Andrews, Ms Barrett and Mr Sharma, and was paid for by the occupants of the room. There was no evidence that senior management was even aware of the booking having been made.
In addition, no one in the room told the applicant her conduct was unwelcome, indeed the lights were off and she thought everyone else in the room was asleep at the time.
Mr Durant specifically rejected the notion that the applicant’s conduct amounted to an act of indecency pursuant to s.61N of the Crimes Act 1900 (NSW). ( Continues … )
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