Social Media Posts Outside of Work Can Constitute Sexual Harassment

Below is a synopsis of the recent case based of the Fair Work Commission decision Pushik v Woolworths Group Limited [2025] FWC 3290.

Circumstances

A long-serving Woolworths Manager, Mr Pushik, was summarily dismissed after sending a series of unwelcome Facebook messages, emojis, and comments to a younger colleague, Ms Ghimire, over several months. These included multiple “love”, “I love you”, “Do you love me” messages, heart-eyes emojis, Valentine’s Day GIFs, red-rose images, and an offer to “take you out one day”.

Additional conduct included:

• Unwanted physical contact at a Christmas party where he kissed her on the cheek and told her she looked beautiful.

• Persistent comments in the workplace about her appearance.

• Repeated invitations to go for drinks or karaoke.

• Statements such as “I would do anything for you”.

Ms Ghimire reported feeling uncomfortable, intimidated, humiliated and unsafe. She did not respond to the messages and ultimately complained through her manager.

The employer investigated, issued a show-cause letter, and dismissed Mr Pushik for serious misconduct (sexual harassment and breaches of the Respectful Workplace Policy and Code of Conduct).

Mr Pushik argued the dismissal was harsh because:

• He did not intend sexual harassment.

• He believed such interactions were normal “friendly” exchanges.

• Others used similar language (e.g., “love”) at work.

• He was not her direct manager.

• Procedural fairness was insufficient during the investigation.

Key Legal Points

1. Valid reason for dismissal.

The FWC found a clear, valid reason based on:

• Conduct of a sexual nature intended to pursue a romantic relationship.

• Conduct was unwelcome, as shown by no responses, direct refusals, and the complainant’s distress.

• A reasonable person would anticipate the conduct would offend, humiliate or intimidate (objective test).

• The conduct breached Woolworths’ Code of Conduct, which explicitly prohibits persistent invitations, unwelcome comments about appearance, and inappropriate online messaging.

2. Sexual harassment threshold met.

Applying established legal tests:

• Behaviour was a sexual advance / conduct of sexual nature.

• It was unwelcome.

• A reasonable person would expect the conduct to offend or humiliate.

3. Procedural fairness was adequate.

Although the employee did not know the purpose of the first meeting, he:

• Was offered a support person,

• Received a full show-cause opportunity,

• Chose not to respond.

These factors did not amount to procedural unfairness.

4. Dismissal was not harsh, unjust or unreasonable.

The Commission placed weight on:

• The pattern of conduct.

• The power imbalance (senior male manager; younger worker on student visa).

• The impact on the complainant (sleep disturbance, anxiety, humiliation).

• The employee’s lack of insight or remorse.

• Recently completed Code of Conduct training.

The application was dismissed.

Key Lessons for Others

1. Online behaviour counts as workplace conduct.

Messages sent outside work hours or on personal social media can still constitute workplace sexual harassment when parties are connected through work.

2. “Friendly” intentions don’t excuse the impact.

Intent is irrelevant.The test is:

• Was the behaviour unwelcome?

• Would a reasonable person expect it to offend or intimidate?

3. Persistent invitations or compliments are risky.

Repeated comments on:

• Appearance,

• Romantic gestures (roses, “be my valentine”),

• Messages like “I love you” or “Do you love me”

  
  

even without explicit sexual content — can amount to sexual harassment.

4. Power imbalances increase seriousness.

Seniority and age difference were key aggravating factors.

5. Behaviour at social events is still workplace conduct.

A workplace Christmas function is covered by the employer’s safety and conduct policies.

6. Lack of insight is irrelevant.

Workers who:

• minimise their behaviour,

• fail to understand policy requirements, or

• show no remorse

weaken their case that dismissal is harsh.

7. Employers must follow policy and provide reasonable process.

This case reinforces:

• sexual harassment is a psychosocial safety hazard that requires thoughtful controls

• the importance of clear and consistent Values, and Code of Conduct procedures and training,

• having a clear complaint and investigation process,

• careful application of HR policy, procedures, and procedural fairness before termination.