Anyone who has been following the news recently will be aware that scandalous sexual relationships in the workplace have become something of a common theme.
The stories of Seven West Chief Executive, Tim Worner and his former executive assistant (a relationship which ended in legal action), the forced resignations of senior AFL executives over their relationships with younger staff, and the notorious pregnancy of former Deputy Prime Minister Barnaby Joyce's staffer have all been highly publicised.
The ironic fallout of Mr Joyce's relationship is the so-called "bonk ban", instituted by Prime Minister Malcolm Turnbull. That ban is intended to prevent all relationships between ministers and their staff, and presumably avoid another scenario such as Mr Joyce's extra-martial affair.
But is this something which employers can actually impose? Particularly in circumstances where many romantic relationships are forged in the workplace?
Although it is virtually unheard of for blanket bans on all relationships to be imposed in any workplace, it is not uncommon for disclosure policies to be introduced.
The intention of such policies is to require staff members to disclose sexual relationships which could result in a conflict of interest, for example when the relationship is between a supervisor and their subordinate.
Such a code of conduct is designed to manage situations where the interests of the business may be in direct conflict with the romantic or personal interests of the employees.
Arguably any relationship in the workplace - not necessarily even a romantic one - could lead to a conflict, particularly when the relationship falls apart or ends badly. This can result in staff feeling unable to work together or believing that they are being victimised by their former lover or friend.
However, it is important to understand the difference between an actual conflict, and a perceived conflict.
The Fair Work Commission's decision of Mihalopoulos v Westpac Banking Corporation  FWC 2087 illustrates the difference. In this case, a Westpac bank manager was dismissed from his role due to his conduct arising out of his relationship with one of the bank's employees.
According to Westpac, Mr Mihalopoulos was dismissed because he was dishonest about his relationship with the worker, breached an apprehended violence order imposed by the worker (after the relationship ended) and inappropriately discussed details of their relationship with his subordinates.
During the course of the hearing, Mr Mihalopoulos admitted that he had put forward his lover for promotions while they were in a relationship, despite denying their relationship to superiors.
The Fair Work Commission ultimately determined that employers were entitled to expect that their workers were honest about the nature of relationships that had formed, so that any conflicts of interest arising from these relationships could be managed.
Further, Mr Mihalopoulos' ongoing and repeated dishonesty about the circumstances of his relationship meant that the business was not in a position to appropriately manage conflicts and therefore manage its own risk. Accordingly, Mr Mihalopoulos' unfair termination application was ultimately dismissed.
In order to manage the minefield of personal relationships in the workplace, Human Resources departments should ensure that both conflict of interest and disclosure policies are in place, which employees should sign up to as part of their terms of employment.
Once a disclosure has been made, the conflict of interest policy should provide steps to be taken to minimise ongoing risks to the business. For example, staff might be reassigned to different supervisors to ensure that appropriate disciplinary action can still be taken.
It is critical not only that these policies exist but that they are clearly communicated to all staff, and that staff are made aware of the potential consequences of failing to adhere to these policies, including redeployment or dismissal.
If you need assistance in managing workplace relationships at your organisation, contact us. Our team can help formulate policies around disclosure and conflict of interest, and can investigate allegations of misconduct.
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