Can a Brief Touch Still Lead to Dismissal in Australia in 2026?

Many employees still believe that a brief physical interaction at work — a touch on the back, shoulder, waist or even buttocks — is unlikely to justify dismissal.

That assumption is increasingly risky.

Australian workplaces in 2026 operate under far stricter expectations concerning workplace behaviour, sexual harassment and psychological safety. Employers now face significant legal obligations to prevent inappropriate conduct, and tribunals are applying modern community standards when assessing workplace misconduct.

One Fair Work Commission decision that continues to influence employers and investigators is John Keron v Westpac Banking Corporation [2022] FWC 221. (DWF)

The decision sends a clear message:

Even a brief intentional touch can justify dismissal if it breaches workplace standards and undermines workplace safety and respect.

The attached draft article provided an excellent foundation for this discussion.

The Westpac Decision Still Matters in 2026

The case involved a senior Westpac manager with more than 35 years of otherwise unblemished service. After a compulsory professional development workshop, employees attended a work-related social gathering at a hotel venue.

Later in the evening, CCTV captured the employee placing his hand on a female colleague’s lower buttocks and moving it upwards toward her waist. Westpac conducted an internal investigation and terminated his employment for serious misconduct. The employee then challenged the dismissal in the Fair Work Commission.

Deputy President Binet upheld the dismissal. (DWF)

Importantly, the Commission acknowledged that community expectations regarding consent and workplace conduct had significantly changed.

The Commission stated:

“The bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the broader community.” (DWF)

That observation remains highly relevant in 2026.

“It Was Only a Joke” No Longer Provides Protection

Historically, some workplace behaviour was minimised as “banter”, “harmless fun” or “nothing serious”.

Australian employers can no longer afford to adopt that approach.

The introduction of positive duties under anti-discrimination legislation, increased psychosocial safety obligations under work health and safety laws, and heightened public awareness following national workplace harassment inquiries have fundamentally shifted employer expectations.

Today, employers must actively prevent inappropriate conduct, not merely respond after the damage occurs.

That includes:

• unwanted touching;
• sexually suggestive conduct;
• inappropriate jokes;
• physical familiarity;
• after-hours misconduct connected to work; and
• behaviour occurring at conferences, Christmas parties or networking events.

The key issue is not whether the employee intended harm.

The key question is whether the conduct was unwelcome and whether it breached workplace standards.

Work Functions Are Still Workplaces

One of the most important aspects of the Keron decision involved the Commission’s finding that the conduct remained sufficiently connected to employment even though it occurred after formal work activities had ended. (DWF)

Many employees wrongly assume workplace rules stop applying once alcohol is served or official hours finish.

They do not.

In 2026, employers routinely investigate conduct occurring at:

• Christmas functions;
• conferences;
• interstate travel;
• training programs;
• networking events;
• client dinners;
• sporting events; and
• informal after-work drinks.

If there is a sufficient connection to employment, disciplinary action may follow.

The Fair Work Commission has repeatedly confirmed that out-of-hours conduct may justify dismissal where the behaviour damages workplace relationships, creates safety risks or harms the employer’s reputation. (Holding Redlich)

Alcohol Is Not an Excuse

Alcohol continues to play a major role in workplace misconduct investigations.

However, intoxication rarely excuses inappropriate conduct.

In Keron, the Commission accepted the employee had consumed substantial alcohol but still concluded the conduct justified dismissal. (Holding Redlich)

In fact, intoxication may increase employer concerns because impaired judgment can heighten workplace safety and reputational risks.

Employers now regularly remind staff that workplace behaviour expectations continue to apply regardless of alcohol consumption.

Training and Policies Matter

Another critical issue in the Westpac matter involved workplace training.

The Commission noted that Westpac had provided training concerning sexual harassment, discrimination and workplace conduct shortly before the incident occurred. (DWF)

That significantly strengthened Westpac’s position.

The lesson for employers is clear.

Policies sitting unread on an intranet will not adequately protect an organisation.

Training must be:

• regular;
• practical;
• contemporary;
• scenario-based; and
• actively reinforced by management.

Employees should clearly understand:

• what constitutes inappropriate conduct;
• how workplace standards apply at social events;
• the consequences of misconduct; and
• how complaints will be investigated.

This issue is particularly important for councils, government agencies and SMEs where informal workplace cultures sometimes blur professional boundaries.

Procedural Fairness Still Matters

Importantly, stronger expectations around workplace conduct do not remove the obligation for procedural fairness.

Employers must still conduct proper investigations before making disciplinary decisions.

A fair investigation should assess:

• witness evidence;
• CCTV or electronic evidence;
• surrounding circumstances;
• workplace policies;
• credibility issues; and
• whether the alleged conduct actually occurred.

Australian tribunals continue to criticise employers who rush investigations or predetermine outcomes.

Even where allegations involve sensitive conduct, employers must ensure investigations remain impartial, balanced and evidence-based.

The 2026 Reality

The modern workplace has changed.

Conduct once dismissed as “minor” can now result in serious disciplinary action, including termination of employment.

Employees should understand that brief physical contact may still breach workplace policies, particularly where the conduct is intimate, unwelcome or capable of causing discomfort.

For employers, the message is equally clear:

Strong workplace culture requires more than policies alone. It requires leadership, training, consistent enforcement and professionally conducted investigations.

Failing to act appropriately may expose organisations to:

• unfair dismissal claims;
• sexual harassment complaints;
• workers compensation claims;
• psychosocial hazard investigations;
• reputational damage; and
• regulatory scrutiny.

In 2026, Australian workplaces are expected to be respectful, psychologically safe and professionally managed.

Tribunals are making it increasingly clear that employers who enforce those standards reasonably and fairly will often receive strong legal support from the Fair Work Commission. (DWF)