THE Fair Work Commission has rejected an unfair dismissal claim by a Coles baker sacked for sending explicit "dick pics" to his manager, even though it found the conduct did not constitute sexual harassment.
Brisbane man Jay Higgins was sacked from the bakery team at Coles Toowong in September 2016, after being requested via text message to provide a medical certificate for his injured thumb.
Instead, he responded with a "picture of a hand bandaged, where the thumb was replaced with a penis".
Fair Work heard that after the first image, his manager Danniel Lacey responded with "great dick pic", leading Mr Higgins to believe he found the image funny, encouraging him to send another two images including one of a penis caught in a bike chain.
Instead, his manager informed human resources, and Mr Higgins was suspended and subsequently sacked for "serious misconduct".
He applied for unfair dismissal the following month, arguing there was no valid reason and he was not given an adequate opportunity to respond.
Mr Higgins argued he and the manager had a personal friendship outside of work, that they were connected on Facebook and often talked at length on the phone and while playing Xbox games, and the messages were sent on private phones outside of work hours.
While Mr Lacey strongly denied any such friendship, Fair Work Commissioner Chris Simpson found that "overall" he accepted that a personal relationship existed between the pair.
"Under cross examination, Mr Lacey conceded at one point that he did in fact find the first image funny," Mr Simpson said.
"However, Mr Lacey appeared to give conflicting evidence at a later stage that he did not find the first image funny.
"Mr Lacey gave oral evidence that the reason he replied with 'great dick pic' was, 'Because when that first hit me it was the first thing I instantly went 'Wow' ... I didn't take time to think, look at it, I just texted away.'
"I am of the view that the more likely scenario is that Mr Lacey did find the first picture funny, and is attempting to make excuses and distance himself from the situation."
Mr Higgins also claimed such behaviour was "accepted as the norm" and that bakery staff often engaged in sexual discussions, saying a female colleague had once made reference to wearing a "strap on dildo" and using it on him.
Coles strongly denied this.
It came after another incident the previous year when Mr Higgins had sent his boss an image of a naked man wearing a gold watch, to which Mr Lacey replied, "That's a big gold watch buddy."
Mr Simpson said he was "not inclined to accept the evidence from Mr Lacey that he was offended by the gold watch message".
"I am of the view the more likely scenario is that he did find the image funny at the time, and is again attempting to distance himself from the conduct," he said.
The FWC found that while not falling within the definition of sexual harassment, "sending images of such an explicit nature ... is clearly conduct inconsistent with the requirement ... to treat others with dignity, courtesy and respect".
Together with Mr Higgins' "aggressive and inappropriate" response to his manager when warned about the text messages, the FWC concluded that his dismissal was "not harsh, unjust or unreasonable".
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