One female colleague, who received the video wrote via Messenger, "Are you serious? Mate don't send me that s***. Luke I think you're a good guy! I don't appreciate msgs like that and I've heard you have been doing this s*** to others. If I was you I'd delete Facebook and be the guy I know you are. If it keeps going someone will take it really serious and you will end up with no job."
He replied that he was sorry and "did not mean to offend you at all", describing it as "a wrong button push".
"Got sent to everyone didn't mean to," he wrote. "My bad. Some liked some didn't."
One of the recipients of the video was Paul McAleer, Sydney branch secretary of the Maritime Union of Australia, who called Mr Colwell to ask him if he had "any dramas at home".
Mr McAleer then made arrangements with Hutchison Ports for Mr Colwell to take three months leave without pay to deal with personal problems. Shortly after his leave period began, the company's human resources manager Harriet Mihalopoulos became aware of the video incident.
Forming the view that the MUA was attempting to "cover-up" the alleged "illegal sexual harassment" by imposing a "ban" on Mr Colwell without notifying his employer of the conduct, she then wrote to the three female employees who had received the video, despite no formal complaint having being made.
"Unfortunately it has come to our attention that you were one of a number of employees that received an unsolicited social media communication from a Hutchison Ports Sydney employee by the name of Luke Colwell," the letter tendered to Fair Work read.
"It would appear that this matter was not brought to our attention. We also understand that, without disclosing the matter to Hutchison Ports the Maritime Union of Australia has purported to impose a sanction on the male MUA member.
"Sexual harassment is illegal. As your employer we have a duty to ensure that our workforce is not directly or indirectly exposed to this type of behaviour.
"As a part of this commitment we must investigate any information that is brought to our attention. In particular we understand that the unsolicited and offensive material was in the form of a pornographic video clip which has been described to us as 'lesso [lesbian] porn'."
The employee who had already messaged Mr Colwell replied that she had told him it was inappropriate and "left it at that", one employee did not respond to the email, and another replied that she felt threatened and attacked by the company for implying she was withholding information about a sexual harassment case.
Mr Colwell, who was sacked for "serious and wilful misconduct", told the Commission he was shocked and confused at the allegation of sexual harassment, saying he thought it "meant things like groping or wolf-whistling in the workplace" and he did not "connect the idea of sexual harassment with my Facebook post".
He argued the video was sent outside of work hours and between friends, that no official complaint had been made, and hence it was not a matter for Hutchison Ports.
Fair Work Commissioner Donna McKenna dismissed the application, finding that the "material sent to employees by the applicant through the use of Messenger as out-of-hours conduct had the likely effect of presenting spillage or potential spillage into the workplace — where the employees would then work cheek-by-jowl together".
Ms McKenna concluded that Mr Colwell had effectively "disingenuous" when contacted by his employer about the video, and that reinstatement would in any case be inappropriate as Ms Mihalopoulos had lost "trust and confidence" in him as an employee "for good reason".
In a statement, Ms Mihalopoulos said Hutchison Ports Australia was "committed to maintaining a harassment-free workplace". "The company has recently been pro-active in recruiting women to the waterfront through its 'women as wharfies' program and is proud of the growing ratio of female employment within its teams," she said.
"There are company policies in place to create an environment for all employees that is free from harassment, and as such, while terminations are difficult at any time, the company will not tolerate obstructions to this workplace freedom."
