A train guard sacked for sending a dick pic to a co-worker after hours has lost his unfair dismissal claim.
The Fair Work Commission rejected his argument that he sent the explicit picture to the woman by mistake.
It found the worker had breached his employer’s social media policy, and therefore ruled the dismissal fair.
Train guard loses unfair dismissal
The man worked for Sydney Trains as a guard since 2010.
In August 2018, an investigation found he had sent a picture of his erect penis to his colleague on the social media app Snapchat.
Sydney Trains subsequently terminated his employment.
The co-worker, who is also a train guard, took screenshots of the explicit image and number of messages.
“YOUR BOSS IS WATCHING YOUR SOCIAL MEDIA – AND HE CAN SACK YOU FOR IT”
‘Do not send me a picture of your dick’
The Commission heard the man messaged the woman late one evening in February, telling her he had been drinking.
“When I’m drunk I send naughty images,” he wrote.
“Do not send me a picture of your dick,” she replied.
The man responded: “Why? Don’t girls like dick picks because guys like clit picks.”
He then sent her an image of his erect penis.
He immediately apologised and told her not to look.
She replied: “Don’t f–king do that again… What the f–k is wrong with you?”
The woman subsequently blocked the man from all of her social media accounts.
She later told management at Sydney Trains about the incident.
Pic sent by mistake
The guard told the Fair Work Commission he sent the dick pic by mistake, and had intended to send a picture of a tattoo on his arm instead.
His lawyers also said their client had been on leave when the incident happened.
Additionally, they argued the man had been suffering from acute anxiety and depression after the breakdown of his 17-year marriage.
What the Commission said
Deputy president Geoffrey Bull said employers should not delve into the private activities of its employees which occur outside of working hours.
However, he found the guard’s conduct had been work-related because he sent the dick pic to a colleague.
Mr Bull rejected the worker’s tattoo story, finding he deliberately sent the offensive picture.
He therefore found the worker breached Sydney Train’s social media policy.
“He overstepped the boundaries of acceptable conduct with a fellow employee to such a degree that no amount of regret or apology can lessen the seriousness of the incident.
“In my view, [the worker’s] conduct in this instance was repudiatory; the misconduct constituted the sending of an image that was offensive and in breach of Sydney Trains’ employment policies.
“It therefore constituted a valid reason for termination.”
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