When sending a ‘dick pic’ is not sexual harassment

A Coles baker who was fired for sending pictures of his penis to his manager has been cleared of ‘sexual harassment’.

The story so far

Brisbane man Jay Higgins was asked by his male manager via text message to provide a medical certificate for an injured thumb. The baker replied by sending a “picture of a hand bandaged, where the thumb was replaced with a penis”.

His boss responded with “great dick pic”. The baker then sent two further photos – including one of his penis caught in a bike chain.

The manager reported the incident to the HR team. As a result, Mr Higgins was suspended and later dismissed, with Coles describing it as ‘serious misconduct’.

But the baker hit back, filing a claim for unfair dismissal with The Fair Work Commission, His argument was that the pictures were a joke in the context of a personal relationship, and that his manager’s initial response led him to believe the photo was taken as such.

The baker explained to the Fair Work Commission that he and his Manager, Daniel Lacey, were friends outside of work – they were connected via Facebook and often talked at length on the phone while playing Xbox games.

Not ‘sexual harassment’

The Commission ultimately rejected the baker’s claim for unfair dismissal, finding it was not ‘harsh, unjust or unreasonable’.

But to the dismay of victims’ groups, it found the incident did not amount to sexual harassment due to the nature of the relationship between the two men.

Workplace culture and reputation

In the eyes of many, the evidence that emerged during the proceedings suggests a seedy, sexualised culture amongst employees of the supermarket giant.

The baker told the Commission that within his team, staff often engaged in sexual discussions, and that one female employee even talked about using a “strap on dildo” on him.

While the Fair Work Commission found insufficient evidence that sexual references are “the norm” within Coles, the reality is that such incidences heighten the focus on the issue of sexual harassment. Indeed, Hollywood’s Harvey Weinstein incident is still fresh in the minds of many, and it seems not a month goes by without media headlines of systemic harassment in one context or another.

While most companies have strong anti-sexual harassment policies, the issues is prevalent across a range of trades, industries and professions, including the legal profession and law enforcement. Indeed, the Australian Federal Police has reported alarmingly high rates of sexual harassment within its ranks.

What is sexual harassment?

The Australian Human Rights Commission defines sexual harassment as unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. It does not include an interaction, flirtation or friendship which is mutual or consensual.

Sexual harassment is a type of sex discrimination, and under the Sex Discrimination Act, it is unlawful in in the workplace and other contexts including education and accommodation.

The latest figures from the Australian Bureau of Statistics suggest that one in two women experience it in their lifetime.

However women are not the only victims, the ABS survey suggested that one in four men had been sexually harassed during their lifetime.