Imagine discovering that a colleague has been looking at photographs of you in swimming gear, showing them to other workers, zooming in on parts of your body and making inappropriate comments.

Now imagine that, after your employer tries to dismiss them, flaws in the process mean they are reinstated, and you may have to continue working alongside them.

This was the situation at the centre of a recent Fair Work Commission decision involving a wharf worker who showed colleagues Facebook photographs of two female co-workers in bikinis without their consent. The Commission accepted that the behaviour was inappropriate, but ultimately ordered the worker’s reinstatement after finding flaws in the employer’s disciplinary process and decision-making.

For NFP leaders, the case contains an important lesson: it isn’t enough to assume everyone understands what constitutes bullying or unacceptable behaviour – employers also need clear expectations and robust processes for responding when things go wrong.

According to employment lawyer Warwick Ryan, “If leaders want to make sure employees are held accountable and to a high standard, then they will need to be quite intentional about these matters.”

But what does being intentional mean in practice?

We asked Ryan about how NFP leaders and HR teams can navigate allegations of bullying and inappropriate behaviour in the workplace, and what they can do to prevent problems from escalating.

The case: what happened and why does it matter?

The behaviour at the centre of the wharf worker case was serious, but the employer’s response ultimately came undone because of how it handled the disciplinary process.

The employer initially responded to the incident involving the photographs with a final warning. It later attempted to dismiss the worker, effectively seeking to impose a more serious consequence for conduct it had already dealt with. The employee was reinstated because the Commission found the employer had already dealt with the conduct through the final warning and could not then rely on the same conduct to justify dismissal.

“This particular case is a rookie error,” Ryan says. “If you want to issue a warning letter and then punish them again, you’re almost always going to come undone.”

So how could this have been avoided?

In an unfair dismissal case, the Fair Work Commission looks not only at what an employee did, but at whether the employer followed a fair process.

“Criteria includes whether there was a valid reason for the termination. That goes to the question of the behaviour, and whether it was clear that it was misconduct. Employers need to be really clear about that,” Ryan says.

“Then there’s whether the employee was told at the time that this was the reason, whether they were given the opportunity to respond, and whether they had access to a support person.”

Even when misconduct is serious, employers must follow a fair process – from establishing what happened and giving the employee an opportunity to respond to deciding on an appropriate outcome. Here are five key lessons NFP employers can take from the case to help them get that process right and reduce the risk of an unfair dismissal claim.

1. Be very clear about what constitutes unacceptable behaviour

One of the biggest lessons from the case is that employers cannot necessarily assume employees understand where the workplace draws the line on misconduct. “What might seem obvious to a regular person as abhorrent behaviour may not be the case for everyone,” says Ryan.

“If you want to ensure that people are terminated [legally], you cannot simply assume that any sort of behaviour will be considered by the Commission to warrant a termination.”

A policy or code of conduct that simply states employees must not engage in “bullying”, “harassment” or “inappropriate conduct” may not be enough. Employers need to explain what those terms mean in practice and communicate their expectations clearly.

Ryan says this could include explicitly identifying behaviours such as:

• Sexualised comments about colleagues,
• Sharing or displaying personal photographs without consent,
• Making racist jokes, repeatedly humiliating or belittling another worker,
• Unwanted comments about someone’s body or appearance, or
• Aggressive and intimidating messages.

Standards in the workplace may also differ from those people encounter elsewhere in their lives. Something somebody considers acceptable among friends or at a barbecue can have very different consequences when directed towards a colleague.

Ryan recommends including specific examples of unacceptable behaviour in workplace policies, rather than assuming employees can interpret an abstract principle and apply it themselves. For example, a bullying policy could explain that a repeated pattern of belittling a colleague in team meetings may constitute bullying, even if the behaviour is presented as a joke.

The clearer the expectations, he says, the stronger the foundation for addressing behaviour when those expectations are breached.

2. Don’t just have policies – make sure employees understand them

Having a detailed conduct policy sitting on an intranet or in an employee handbook isn’t enough. Employers need to demonstrate that policies have been communicated to employees, including the potential consequences of breaching them. This starts at induction, but shouldn’t end there.

Ryan recommends reviewing policies regularly, providing training when they change and asking employees to periodically confirm that they have read and understood them. Employers should keep records of these steps so they can demonstrate, if a dispute arises, that employees knew what was expected of them.

For smaller NFPs, this doesn’t require sophisticated HR systems. It could be as simple as keeping induction records, noting when policies were distributed, documenting training sessions and asking staff to sign an acknowledgement that they have read and understood the relevant policies.

Ryan also says policies should be supported by training that gives employees an opportunity to understand and discuss what the policy says, why it matters and what it means for their conduct at work. Ryan describes this as “an investment in genuinely educating staff about the expectations of them”.

3. Ensure you have evidence before taking disciplinary action

According to Ryan, employers need evidence to justify disciplinary action – they can’t just act on speculation or assumptions alone. What that evidence looks like, and how employers go about gathering it, will depend on the allegation.

Sometimes it’s relatively straightforward. If inappropriate conduct occurred over email, for example, an employer may already have the relevant documents. The employee can be invited to a disciplinary meeting, shown the material, given an opportunity to explain their actions and allowed to have a support person present. The employer can then consider that explanation alongside the available evidence before deciding what action is appropriate.

Where misconduct is alleged to have occurred through conversations or interactions without a written record, an organisation may need to interview the people involved, speak with witnesses and take statements, documenting the information gathered before forming a view about what occurred.

Conflicting accounts do not necessarily mean an employer has to abandon the process. An investigator can consider the evidence and circumstances and form a view about which version is more credible. The important thing is to keep an open mind throughout the investigation rather than starting with a conclusion about what happened.

For serious or complex allegations, particularly where nobody internally has the necessary expertise or independence, that may mean bringing in an external HR, industrial relations or legal professional.

4. Have a process ready before somebody makes a complaint

The worst time to work out how your organisation handles bullying complaints is after an allegation has landed on your desk.

Ryan advises that one of the first steps when a complaint is made should be assessing its seriousness. “If it’s a matter that poses a genuine threat to the wellbeing of that individual, then you need to move on it ASAP,” he says.

That means establishing what happened, when and where it occurred, what was said or done and who was present. It also means considering whether anyone is at immediate risk and whether steps are needed to protect their wellbeing while the matter is assessed.

Not every interpersonal problem requires a formal investigation. A disagreement or personality clash, for example, might be resolved informally, particularly if the employee feels comfortable with that approach. But managers need to know when informal resolution is appropriate and when an allegation requires a more formal response.

Managers also need to understand and be explicit about the difference between bullying, harassment and other forms of misconduct, as these terms have different meanings under workplace laws and may require different responses.

For example, Worksafe Victoria defines bullying as “repeated, unreasonable behaviour directed at a person or group that creates a risk to health and safety”. A single incident of verbal abuse may not meet this definition of bullying, but it can still be serious misconduct and require action. Harassment is also distinct and can take different forms, so managers should assess the specific behaviour against what is written in their policy or code of conduct, rather than assume that an incident falls outside their responsibility because it does not meet the definition of bullying.

A practical starting point is to document your organisation’s complaint-handling process. It should set out:

• Who receives complaints,
• Who assesses them,
• When an investigation is required,
• Who is responsible for investigating, and
• How the people involved will be kept informed.

It should also explain how complaints and investigation findings will be documented and stored confidentially.

Smaller organisations should provide an alternative reporting option for employees who do not feel comfortable approaching their direct manager. This could be another manager, a health and safety representative, a designated staff member or an external HR adviser. Having these arrangements in place before a complaint arises helps ensure concerns can be raised and addressed promptly, fairly and consistently.

5. Think about the wellbeing of the whole workplace

One of the less obvious lessons from misconduct cases is that the consequences extend beyond the employee accused of wrongdoing.

NFP leaders also need to consider the wellbeing of employees who experienced or witnessed the behaviour, as well as the wider team. This means checking in with affected staff, assessing whether interim measures are needed to protect their wellbeing and reviewing working arrangements if the employee returns to the workplace.

As Ryan points out, the wellbeing of other staff can sometimes be overlooked when attention focuses on whether disciplinary action against one employee was legally justified.

“Often what I find in these cases – and this one is a very good example – is you’ve got a workplace where [an employee] is going to be reinstated and the women who are objectified are expected to work alongside them, showing seemingly no regard to the wellbeing of other staff members. To be fair, it’s not explicitly set out with the provisions of the legislation and it really should be. When someone is going to go back into an environment, the focus should not be just on their welfare but that of their fellow workers too.”

The wharf case illustrates the practical challenge for managers: a legal outcome does not necessarily resolve the workplace issues that led to the complaint. Employers may need to consider whether employees can safely work together, whether rostering or reporting arrangements need to change and what support affected workers require.

Leaders should also consider the wider team. If employees see colleagues raise serious concerns but believe nothing meaningful happens as a result, they may become less willing to speak up themselves. Checking in with staff, communicating appropriate updates and reviewing whether support measures are working can help rebuild trust and reinforce that concerns will be taken seriously.

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The wharf worker case is a reminder that responding to misconduct involves more than deciding whether behaviour was unacceptable. NFP employers need to be able to demonstrate that employees understood the standards expected of them, allegations were properly investigated, decisions were supported by evidence and disciplinary action followed a fair process.

Preventing problems starts well before a complaint is made. Clear policies with practical examples, training that helps employees understand their responsibilities, trusted reporting pathways and early intervention can help NFPs address inappropriate behaviour before it escalates. For NFP leaders and HR teams, investing in prevention is not just about reducing legal risk – it’s about creating a workplace where people feel safe to speak up and inappropriate behaviour is addressed before it causes lasting harm.

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