A Toll Transport truck driver has had his “George Pell” defence rejected by the Fair Work Commission, after he was sacked for allegedly sexually harassing a younger male co-worker by joking about “molesting” him and calling him his “toy boy” and “step son”.
Toll sacked the driver after finding he had acted inappropriately by sending vulgar and sexually offensive text messages to the younger forklift driver, despite evidence the relationship was consensual.
Anthony Clarke, 63, had worked for Toll for 13 years as a pick up and delivery driver.
He sent a series of text messages to the 37 year-old forklift driver who was from the Philippines, which included references to “molesting” him and calling him his “toy boy” and “step son”.
During the exchanges, the younger man continually requested money from the older man, who repeatedly professed his love for him.
Mr Clarke told the Commission that all references to “molesting” in his texts to the younger man were merely “tongue in cheek” references to Cardinal Pell, who the two had previously spoken about.
Mr Clarke also said the pair had discussed a book that he had read about Cardinal Pell, “Cardinal: The Rise and Fall of George Pell” by Louise Milligan.
Mr Clarke stated that his message to Mr Torres of 13 May 2018, “…Next time I molest you will put my hand on your little balls and squeeze them till you cry…”, was a partial quote drawn from Milligan’s book.
The messages came to the attention of Toll management later that same month when the younger man made a formal complaint of sexual harassment against Mr Clarke, claiming the older man had touched him inappropriately in the lunch room.
Text messages private
Mr Clarke argued that the text messages were private, and were joking references about Cardinal George Pell, and attacked Toll for acting like “the moral police”.
He also argued the younger worker only complained when he refused to give him money.
Despite finding the messages were consensual, Toll held they were a breach of its sexual harassment policy, and dismissed the driver.
It said it would have also fired the forklift driver, but he had already resigned from the company.
Boundaries of acceptable conduct should not be crossed
In considering Mr Clarke’s unfair dismissal application, Commissioner Jennifer Hunt said that while employees could text message each other outside of work, there were “boundaries relevant to acceptable conduct which should not be crossed”.
“One can’t text message a work colleague any message one likes if it breaches reasonable expectations of conduct,” she said.
“An employer is entitled to expect its employees will communicate within the workplace with appropriate levels of respect, civility, and good conscience not to harass, embarrass or intimidate.”
Regarding the discussions about Cardinal Pell, Ms Hunt found that it went beyond “a one-off discussion”.
“There was no ongoing text ‘banter’ between the men about molestation; it was all one way from Mr Clarke to [the younger man],” she said.
“There was no ongoing ‘banter’ from Mr Clarke to [the younger man] linking the ‘squeezing of little balls’ with Cardinal Pell.”
In the end, Ms Hunt found Mr Clarke’s dismissal was not unfair, and dismissed his application for unfair dismissal.
“I find that Mr Clarke’s text message to [the younger man] constitutes a valid reason for the dismissal. Further, I find Mr Clarke’s lack of integrity during Toll’s investigation into this issue to constitute a valid reason for the dismissal,” she said.
Miles Heffernan, Litigation Director at Discrimination Claims, said the case is another reminder to employees that what you do out of work hours can impact your career.
“Whether it is text messages, or social media posts, whenever you are communicating with work colleagues, or discussing anything to do with your work, then your boss can use it against you,” he said.
“And it is never a good idea to make comments or send images or emojis that are of a sexual nature, because that often is a one-way ticket to the unemployment queue.
“As this case showed, it seemed the sexual banter was mutual, until the younger worker didn’t get the money he wanted, and then he made a formal complaint, and all of those text messages were recovered and used as evidence to dismiss Mr Clarke.”
Miles Heffernan is one of our specialist team at Discrimination Claims who can assist workers who have been unfairly dismissed from employment, or who have experienced sexual harassment or sex discrimination.
If you have experienced sexual harassment or sex discrimination, or if you have been unfairly dismissed from employment, you may be entitled to compensation.
Please call our specialist team at Discrimination Claims today on
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