Telstra to appeal sex ruling

Telstra to appeal sex ruling
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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?”

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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.

Erosion of workers’ rights

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).

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Telstra sidesteps corporate responsibility

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 Jonathan 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 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.

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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 afterwards 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.

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Shortly after, according to Ms Andrews’s testimony, Steve 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 2.00 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.

Colleague felt awkward watching sex act

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.”

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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 around 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.

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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 Kelly 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).

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However, Stuart Wood of Counsel who appeared for Telstra claimed Ms Streeter’s behaviour amounted to a “breach of trust and confidence”, a “breach of Telstra’s interests” or a “breach of duties”.

In his decision the Commission found that Ms Streeter’s conduct in relation to the incident involving Ms Hyett needing to use the bathroom, “cannot properly be characterised as sexual harassment.

“Ms Hyett asked to be let inside the bathroom. It would obviously have been more appropriate if Ms Streeter, Mr Hatzistergos, and Mr Sharma allowed her to use the toilet in private.

However, Ms Hyett insisted on being let into the bathroom despite their presence, and did not ask them to leave, which she clearly could have done. It seems to me that Ms Hyett showed Ms Streeter no more respect than Ms Streeter showed her”.

Having sex in front of someone is not indecent

Deputy President Hamberger further ruled, “it is not an act of indecency with or towards someone merely to have sexual intercourse in their presence. Something more is needed, such as an invitation or encouragement to watch. There is no such evidence in this case. When Ms Streeter had intercourse with Mr Sharma it was in a hotel room with the lights out in the middle of the night.”

In regards as to whether the actions constituted sexual harassment, the Commission said, “it is not enough that sexual conduct offends another person – the conduct must either be done with that person in mind or have a connection with that person.

“I cannot conclude that her conduct was “in relation to” them. That they were upset by her conduct is not enough to establish that it constituted sexual harassment. I should add that even if it were considered sexual harassment, it was only of the most indirect kind.”

According to Deputy President Hamberger, Telstra’s “submissions greatly exaggerated the seriousness of Ms Streeter’s misconduct, particularly the suggestion that she committed a criminal act of obscenity. Moreover, I have found most of the behaviour complained of either did not constitute sexual harassment as defined by the SDA or only did so in a relatively marginal way.

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“Her employment was not terminated for unsatisfactory performance.

More sinned against than sinning

“Ms Streeter’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 “more sinned against than sinning”.

In conclusion, the Commission found that it would be “appropriate for her to be re-employed by Telstra at another retail outlet (as close to Miranda as practicable) in a similar position to the one she previously held, on terms no less favourable than those on which she was employed immediately before the termination”.

It also ruled that Telstra “should pay Ms Streeter an amount equivalent to any remuneration lost as a result of her termination. Her service should also be treated as continuous, as if she had not been terminated, for the purposes of leave accrual and so on.

Telstra has been quick to respond to the ruling, announcing almost immediately afterwards that it would appeal the Commission’s ruling.

It also disclosed that the two male employees involved in the incident, co-worker  Mr Sharma and store manager Steve Hatzistergos, as well as another unnamed woman, have also been fired by Telstra.

It is not known if these three will also lodge unfair dismissal claims against the telecommunications giant.

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John Le Fevre is an Australian national with more than 40 years experience as a journalist, photographer, videographer and editor.

He has spent extensive periods of time working in Africa and throughout Southeast Asia, with stints in the Middle East, the USA, and England.

He has covered major world events including Operation Desert Shield/ Storm, the 1991 pillage in Zaire, the 1994 Rwanda genocide, the 1999 East Timor independence unrest, the 2004 Asian tsunami, and the 2009, 2010, and 2014 Bangkok political protests.

In 1995 he was a Walkley Award finalist, the highest awards in Australian journalism, for his coverage of the 1995 Zaire (now Democratic Republic of Congo) Ebola outbreak.

Most recently he was the Thailand editor/ managing editor of AEC News Today . Prior to that he was the deputy editor and Thailand and Greater Mekong Sub-region editor for The Establishment Post, predecessor of Asean Today.

In the mid-80s and early 90s he owned JLF Promotions, the largest above and below the line marketing and PR firm servicing the high-technology industry in Australia. It was sold in 1995.

Opinions and views expressed on this site are those of the author’s only. Read more at About me

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