A 33-year old pallet repairer in the United Kingdom who paraded through his workplace wearing an “elephant thong willy warmer”, a high visibility vest and boots has been dismissed for ‘gross misconduct’.
Shaun Haggerty from Merseyside in England walked through the warehouse after being dared by a co-worker.
“It was one of the lads [who] asked me to do it for a bet. It was their idea”, he told the media.
“They dared me to put on the thong so I just said, ‘alright then, give it here’.”
But the prank went awry when Mr Haggerty’s employer reviewed the CCTV footage, then sent him a letter stating:
“Your actions… where you danced the full length of the yard and back to your work area wearing only an elephant thong, hi-vis and boots… in full view of customers, visitors, business associate… [amounted to] “gross misconduct on the grounds of Health and Safety and common decency.”
But Haggerty has remained upbeat about his dismissal, telling the media:
“When I received the letter, I just burst out laughing. It was so funny”, adding “[b]eing sacked didn’t worry me”.
Workplace laws aside, the conduct raises questions about the reach of criminal laws in New South Wales – specifically, whether they might extend to such conduct in our state.
Morality laws in New South Wales
There are a number of criminal laws in place to ensure individuals act in line with contemporary standards of decency.
Section 5 of the Summary Offences Act 1988 (the Act) prescribes a maximum penalty of six months in prison and/or a fine of $1,100 for anyone who, ‘in or within view from a public place or school, wilfully and obscenely exposes his or her person’.
Wilful has been defined as having the required intent, which means the prosecution must prove beyond reasonable doubt that the exposure was on purpose rather than by accident, by the act of another person or through mere negligence.
Whether exposure is ‘obscene ‘is determined by contemporary standards of decency, although the courts have held that exposure of the penis and/or testicles amounts to obscene.
However, it is unlikely that wearing underwear of the type worn by Mr Haggerty would suffice, as no part of his genitalia was showing.
Public place is defined by section 3 of the Act as, ‘a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons’.
This definition is broad enough to encompass many workplaces, depending on the particular circumstances.
And in the case of R v Eyles  NSWSC 452, the Supreme Court found that the prosecution only needs to prove that the exposed area could have been seen by a person who was in a public place, not that the defendant was in a public place at the time of the exposure or that the exposure was actually seen by anyone.
But at the end of the day, it can be argued that a court would be unlikely to find that the actions of the English prankster were not sufficient to make out the offence of obscene exposure because his genitalia was not exposed.
Section 4(1) of the Act prescribes a maximum penalty of three months imprisonment and/or a $660 fine for a person who ‘conduct[s] himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.’
Subsection (3) provides a defence to the charge where the defendant, ‘satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged’.
The Act does not list or define what conduct is offensive.
In the classic 1951 Victorian Supreme Court (VSC) case of Worcester v Smith, Justice O’Bryan found that conduct is offensive if it is “… calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person.”
Justice Kerr affirmed and expanded upon this definition in the 1966 ACT Supreme Court case of Ball v McIntyre, which involved a war protester with a placard that read “I will not fight in Vietnam” squatting on a statute of King George V outside Parliament House in Canberra.
According to the justice, conduct can be “hurtful or blameworthy or improper” and offend “against standards of good taste or good manners,” but may still not amount to offensive under the criminal law.
And in the 1990 NSWSC case of Evans v Frances, the court stated that:
“To convert the reasonable man into one who is not so thin-skinned as not to be distressed or offended… in my submission is not to apply the test of the reasonable man”.
Turning to the conduct of Mr Haggerty, and assuming his actions were committed in a public place or could be seen from such a place, the prosecution would need to prove beyond reasonable doubt that the prankster’s conduct was calculated to wound the feelings or arouse disgust in a reasonable person – which may be a tough ask.