The Fair Work Commission has upheld Woolworths’ decision to summarily dismiss a 63-year-old department manager for sending inappropriate messages—including a red lipstick kiss emoji and repeated declarations of love—to a 29-year-old colleague.
This case reinforces that sexual harassment does not need to be explicit, and that age gaps, power dynamics and employee vulnerability are central in assessing the seriousness of conduct. It also highlights that even where conduct may fall short of the strict legal definition of sexual harassment, employers may still have a valid and defensible basis to terminate.
The Case
In Alexander Pushik v Woolworths Group Limited [2025] FWC 3290, Woolworths dismissed a long-serving Fruit & Vegetable Manager after investigating a female colleague’s complaint regarding inappropriate messages. Over a nine-day period, the manager sent several emojis (including a red lipstick kiss and two people kissing), as well as messages such as “I love you”, “Do you love me?”, “love”, and comments calling her “beautiful”. He also posted, “Can take you out one day” on her Facebook page, and she reported he kissed her on the cheek at a Christmas party.
The manager argued that he was simply being friendly, that he commonly uses affectionate messages with his friends, and that he did not intend any sexual content.
Woolworths rejected that explanation and summarily dismissed him.
He then lodged an unfair dismissal claim.
Application of the Sexual Harassment Framework
Deputy President Grayson reviewed Woolworths’ Code of Conduct, noting its alignment with the three elements of sexual harassment under the Sex Discrimination Act 1984, as outlined in Hughes v Hill:
- Conduct of a sexual nature
- The conduct was unwelcome
- A reasonable person would anticipate the possibility of offence, humiliation or intimidation
Although the messages were not explicit, the Commission found they were still conduct of a sexual nature because they were sent in the context of the manager’s unreciprocated romantic interest in the colleague. Drawing on Taylor v August and Pemberton Pty Ltd, the Commission highlighted that a declaration of love may constitute a sexual advance depending on the circumstances.
Repeated requests to take her on a date further demonstrated a desire for an intimate personal relationship.
Unwelcome Conduct and Vulnerability
The colleague did not expressly tell the manager to stop, but the Commission found the conduct was unwelcome. She felt unable to complain directly due to his age, seniority and authority, and she feared for her job security. As a young international student on a visa, she was considered particularly vulnerable.
The absence of a contemporaneous objection did not alter the fact that the behaviour was unwanted.
Reasonable Person Test
The Commission found that a reasonable person, considering the significant age gap, the manager’s position of authority and the colleague’s vulnerability, would anticipate that she may be offended, distressed or intimidated by his conduct.
Valid Reason for Dismissal
Deputy President Grayson noted that she did not need to determine whether:
- sexual harassment occurred under legislation
- serious misconduct under the Fair Work Regulations was established
- Woolworths’ policies were specifically breached
The test was simply whether Woolworths had a sound and defensible reason to terminate the employment.
The Commission found that the behaviour:
- fell well below workplace and community standards
- involved repeated boundary breaches
- caused the colleague considerable distress
- created an inappropriate dynamic given his authority over her
The unfair dismissal claim was dismissed.
Key Takeaways for Employers
Context Matters
Sexual harassment does not require explicit sexual content or imagery. Affectionate language or emojis can constitute a sexual advance depending on context.
Power Imbalances Need Careful Management
Age, seniority, job security and visa status are all relevant. Employers must ensure senior employees understand their elevated responsibility to maintain professional boundaries.
Silence Is Not Consent
Employees may not feel safe to object, especially where job security or immigration status is at stake.
Intent Does Not Excuse Impact
An employee’s intention is not determinative. The focus is on the effect on the recipient and whether the conduct was appropriate in the workplace.
Professional Boundaries Apply at All Times
Even seemingly friendly conduct can be inappropriate, particularly where there is a power imbalance or where conduct is unreciprocated.
Clear Policies Support Employer Action
Well-drafted codes of conduct and respectful behaviour policies help set expectations and support defensible decision-making.
Employers Can Act Before Conduct Meets Legal Definitions
Conduct can justify dismissal even if it does not meet the strict statutory test for sexual harassment. The standard is whether the employer had a sound, defensible reason to terminate.
Final Thoughts
This case is an important reminder that workplace culture, respect and the protection of vulnerable workers must sit at the centre of leadership decision-making. Employers should ensure:
- behavioural expectations are clearly communicated
- employees feel safe to make complaints
- leaders are trained on professional conduct
- investigations are timely and trauma-informed
If your organisation needs support reviewing sexual harassment policies, delivering respectful behaviours training, or conducting investigations, I can help.
