Welcome to Sisters In Law, weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help someone who was warned by her employer for accidentally sending a nude picture.
I am in an embarrassing situation that I’m hoping you can help me with. I’d had a few drinks at home one night when I decided to take a cheeky nude for a guy I was seeing.
Once I’d sent the pic I fell asleep. The next morning I woke up with a sore head and about 100 Whatsapp notifications.
It turned out instead of sending it to my man, I’d actually sent it to my work group chat which has about 20 people on it – basically everyone I work with has seen a drunk, naked photo of me! I was obviously mortified and deleted it then sent a red-faced emoji.
I thought that would be the end of it but my boss emailed to say he was going to escalate it and gave me a warning. Every time I see him he brings it up and shakes his head at me. I was due a promotion and that’s been taken from under me.
I obviously didn’t intend to send the photo and my embarrassment is punishment enough in my opinion. Does my boss have a right to hold this against me? — Leah, WA
We can understand you’re embarrassed and probably want nothing more than to hibernate until it all blows over.
The definition of what is a work-related activity that you can be held accountable for is open for interpretation under the law.
Any activity associated with work that occurs away from your usual place of work or outside normal hours of work, including work parties and arguably group chats with work colleagues, may be considered to be part of the workplace and therefore subject to general workplace laws.
This means that if in sending this photo, albeit by accident, you have not complied with your employer’s workplace policies, rules or code of conduct or disrupted or offended colleagues then disciplinary action can be taken against you.
It sounds like this is what your employer has proceeded to do, in issuing a warning and reneging on your promotion they have decided that your performance was ‘unsatisfactory’.
It is difficult to know whether this disciplinary action was harsh, unjust or unreasonable without knowing what sort of organisation you work in, their policies or if a colleague made a complaint about your behaviour.
What is reasonable behaviour does vary from workplace to workplace and the expected behaviour and values the organisation promotes.
You should find out if your employer has a grievance policy which may allow you to raise a complaint internally about the disciplinary action.
If you are employed under an industrial award or an enterprise agreement, those documents may outline how you can take issue with the disciplinary action.
We also suggest raising all your queries with your boss, his supervisor, and/or someone from Human Resources.
Assuming the disciplinary action taken is reasonable, you should seek guidance to understand the effect of the written warning on your ongoing performance and opportunities for promotion.
There is no law that says what the effect of a written warning is, for example, that an employee must be given a certain number of warnings before their employment is terminated.
Further, it is useful to have open and direct communication with your boss so you can understand his expectations of you and he can understand your future career intentions.
It is appropriate to also raise your concerns about your boss continuing to discuss the photo. Follow up in writing making it clear that you think you are being treated unfairly.
Your boss’ behaviour sounds unreasonable and could amount to bullying.
The definition of bullying at work includes repeated behaviour that is unreasonable, such as victimising or humiliating someone that creates a risk to their health and safety.
This can be raised using any internal grievance procedure or through Human Resources which may lead to an investigation, disciplinary action and the behaviour stopping.
If your employer’s internal remedies aren’t successful, you should seek legal advice and consider bringing a claim with the Fair Work Commission.
The Fair Work Commission has the power to issue an anti-bullying order which is intended to stop the bullying immediately.
The Commission has a Workplace Advice Service where you may be able to get free legal advice about bullying.
As in most situations like yours, the more records or evidence you have of the issues you are having at work (including making notes of the conversations you are having or taking a support person along to meetings) the easier it is to prove that you are not being treated fairly.
The information contained in this post is for general information purposes only. Opinion articles, comments are solely the responsibility of the author and does not necessarily reflect the views of BlazeNewz while we endeavour to keep the information accurate with objectivity as we adhere to global practice of journalism. Read our full Disclaimer.
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