Is It Legal To Have Sex With Your Employees?

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For the past two weeks, Australian politics have been dominated by the explosive revelation that Deputy Prime Minister Barnaby Joyce engaged in an extramarital affair with a staffer who is now expecting his child. The particulars of the relationship have been roundly criticised by both sides of politics, with several ministers and former politicians calling for Joyce's sacking.

In direct response to the affair, Malcolm Turnbull has banned sexual relations between ministers and staff in a bid to bring the ministerial code of conduct in line with "attitudes in the corporate world." This may have some people wondering: is it ever illegal to have sex with an underling in a corporate setting?

In the unlikely event that you missed all the headlines, the Daily Telegraph revealed on February 7 that Nationals leader Barnaby Joyce walked out on his marriage of 24 years and is now living with a former media advisor who is pregnant with his baby.

Needless to say, it isn't a good look for Barnaby who fronts a conservative party that prides itself on championing traditional family values. At the time of writing, Joyce is still clinging to his party's leadership but it looks increasingly unlikely that he will be able to retain his position.

In the wake of the affair, Joyce has been accused of nepotism, cronyism and flat-out corruption, but we're here to focus on the legalities of sexual liaisons between managers and their staff.

So, it it legal to proposition a subordinate for some hanky panky while on the job? As Paula McDonald, Professor of Work and Organisation at the Queensland University of Technology explains on The Conversation, it largely depends on the nature of the relationship:

Unlawful sexual conduct includes sexual abuse, sexual assault and sexual harassment. Sexual harassment is any unwanted or unwelcome sexual behaviour that makes someone feel offended, humiliated or intimidated. It is not interaction, flirtation or friendship that is mutual or consensual.

In contrast, inappropriate relationships – while not explicitly unlawful – are usually associated with unequal power relationships.

Organisational codes of conduct often set out guidelines around the behaviour of supervisors and managers over their subordinates. A power imbalance between two employees may arise due to age, seniority or other factors, such as the capacity to influence outcomes.

In other words, while it's perfectly legal for a manager to engage in consensual sex with a junior staff member, such relationships are almost always deemed to be 'improper'.

At the very least, it can create the perception of conflicts of interest, particularly when it comes to staff promotions and the like. This can lead to disciplinary action for the manager and even termination of employment.

If sex with staff members isn't specifically forbidden in your employment contract, pleading ignorance - AKA the "George Costanza defence" - is unlikely to save your skin.

For example, in 2014 a married Westpac bank manager embarked on a six-month affair with a female staff member. The affair quickly became public in the workplace due to multiple 'one-on-one' meetings in his office behind a locked door. When the branch supervisor became aware of the affair the manager was promptly fired - and later had his unfair dismissal claim rejected.

We'll leave the last word with the Bonk Banner himself, Prime Minister Turnbull:

We must recognise that whatever may have been acceptable or to which a blind eye was turned in the past, today, in 2018, it is not acceptable... It is a very bad workplace practice. And everybody knows that no good comes of it.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


Comments

    It's only wrong when that boss is already married with kids and betrays those loved ones because he's a lecherous old timer. For pollies, if he can so atrociously betray those closest to him then how can the wider public ever trust him?

    If your on the clock, your on the clock! Besides the workplace behaviour issues, it is also basic fraud if your charging for your hours or company expenses while NOT performing your assigned duties in an honest fashion.

    Having a meeting with your media advisor on the clock, when its not about work, is fraud for both parties billing their hours.

    Of course it’s legal.

    You can have sex with anyone you want, as long as they are adults, and consent.
    And in some states, as long as you don’t pay for it.

    The question is, given the circumstances, is it appropriate, and ethical?

      >You can have sex with anyone you want, as long as they are adults, and consent.

      incest is illegal and if it isn't, it should be

      Lots of people form work place relationships. It's a pretty common way of finding your partner. I think the best way to judge whether it's appropriate is whether the people involved are willing for others to know about it. Not necessarily in the first week or two (since lots of relationships fail quickly) but once it *is* an ongoing relationship.

      If the boss is dating a subordinate and is up front about it, recusing themselves from promotion decisions and the like then I don't see an issue. Well I do... some people will always assume there's "favour" for the subordinate even when there is none. So it can cause toxicity in the workplace even if the relationship is 100% above board. But I'd argue that it's the toxic employees fault not the people in the relationship.

    >Deputy Prime Minister Barnaby Joyce engaged in an extramarital affair with a staffer who is now expecting his child

    AYE CARUMBA!
    First I've heard of this

    This is why the military has had a "no fraternisation" policy and many workplaces have a policy that if a relationship exists, that one or the other of the partners resigns. It is to avoid the charges of impropriety and unethical behaviour particularly if one is a direct manager of the other.
    I have seen how destructive an affair in the workplace can be particularly when there is an imbalance in the status of each individual. It can cause whole departments to self destruct as everyone has an opinion based on their knowledge or not of the behaviour in the relationship. To all juniors starting out in the workplace, I say make sure that you find your happy place outside of the workplace, so that you don't sh!t in your own nest.

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