Workplace social media policies can apply to out-of-hours conduct.
Workplace social media policies can apply to out-of-hours conduct.

Train guard sacked for penis photo

A SYDNEY Trains guard sacked for sending a female colleague a photo of his penis via Snapchat out of work hours has lost a bid to get his job back.

Rodney Fussell was let go in August last year for sending fellow train guard Kendall Abbott the offending picture on the evening of February 25.

Ms Abbott was sitting on the couch watching television with her husband and two children when Mr Fussell, who had added her on picture app the previous day, sent her a message stating that he had been drinking.

He then said words to the effect, "When I am drunk I send naughty images."

According to Ms Abbott, she replied, "Do not send me a picture of your d**k."

Mr Fussell asked, "Why? Don't girls like d**k picks because guys like to get cl*t picks."

He then sent her an image of his erect penis with the message, "Was home alone … But before I wasn't … Fwb", which Ms Abbott understood to mean 'friends with benefits'.

Ms Abbott wrote, "Don't f**king do that again" and "What the f**k is wrong with you."

Mr Fussell then sent a message saying, "S**t don't look. I'm so sorry."

He claimed he "meant to send you this one", attaching a photo of his tattoo.

Ms Abbott blocked Mr Fussell on social media and over the next few days messaged a number of friends at work telling them about the incident "to let them know what a f**king grub scum bag he is".

Mr Fussell was ultimately sacked after superiors found out.

In his unfair dismissal claim before the Fair Work Commission, Mr Fussell's lawyers argued it was a "one-off accidental event" for which he "was apologetic and regretted".

They argued that at the time of the incident, he was not at work and the "only fact that links the event to the workplace is that Ms Abbott is also a train guard employed by Sydney Trains".

On Friday, Fair Work deputy president Geoffrey Bull dismissed the application.

He found the photo was "deliberately sent and Mr Fussell's attempts to suggest otherwise strain credulity beyond any reasonableness".

Further, he noted that Sydney Trains' social media policy, of which Mr Fussell was aware, applied to "out-of-work conduct when interacting with other staff including on private social media platforms".

"While the sending of the offending image may have been a one-off lapse of judgment, the image was at the extreme outer limit of offensiveness," Mr Bull said.

"It was unsolicited and sent after having been put on notice by Ms Abbott not to send such an image. Mr Fussell overstepped the boundaries of acceptable conduct with a fellow employee to such a degree that no amount of regret or apology can lessen the seriousness of the incident."