A department manager’s conduct towards a junior employee met the employer’s definition of “sexual harassment” and therefore justified his dismissal. 
 

Facts of case 

The manager was aged 63 and his subordinate employee in her late 20s, so a clear power imbalance existed. She was also an  international student on a visa. 

There was evidence that he did the following: 

  • Sent her emojis of lipstick, thumbs-up and two people kissing 

  • Sent messages of “I love you”, “do you love me” and “love” 

  • Kissed her on the cheek at the Christmas party 

  • Told her several times she was “beautiful” or similar 

  • Posted on her Facebook page “can take you out one day” 


The Fair Work Commission (FWC) held that although this conduct was not overtly or explicitly sexual in nature, it was nevertheless “of a sexual nature”. 

The FWC added that it fell within the three main elements of the employer’s anti-sexual harassment policy, which in turn mirrored those of the Commonwealth Sex Discrimination Act 1984: 

  • that there has been any sexual advance, request for sexual favours or other conduct of a sexual nature 

  • that the conduct was unwelcome to the person allegedly harassed, and 

  • that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated 


The manager claimed that he was just trying to be friendly and it was normal for him to send messages such as the above to his friends. However, the FWC said it was clear he wanted to have a romantic relationship with the employee. Implicit in that was a desire to have sex with her, and therefore a “sexual advance”. The manager may not have intended to intimidate, humiliate or offend the employee, but his conduct was still clearly unwelcome. 

Given the “reasonable person” constraint above, it was not necessary for the employee to tell the manager that his conduct was unwelcome. The power imbalance gave her a justifiable fear of adverse consequences. The FWC noted that “not complaining” did not mean that she condoned the conduct. 
 

Decision 

The FWC found that the conduct described above gave the employer a valid reason to dismiss the employee. His conduct fell well below community standards and expectations and caused considerable distress to an employee who was subordinate and “vulnerable”.  That alone was sufficient to be a valid reason, regardless of whether sexual harassment occurred. 
 

What this means for employers 

The finding here was not that sexual harassment had occurred (nor that it hadn’t), but that the manager’s conduct was unwelcome and of a sexual nature, that his victim was disadvantaged by a power imbalance and that his conduct fell below acceptable community standards. 

However, it also helped the employer that it had a policy that was consistent with sexual harassment legislation. 


Read the judgment 

Alexander Pushik v Woolworths Group Limited [2025] FWC 3290 (17 November 2025)