Intention Doesn’t Matter: Image Sharing ‘In Good Humour’ Breaches Sexual Harassment Laws

Kelly v Commonwealth of Australia as represented by Services Australia (formerly the Department of Human Services) (No 3) [2026] FCA 735 

Summary  

Mr Kelly brought proceedings against his former Services Australia co-worker, Ms Stone, along with the employer and a former supervisor. Shortly before the Federal Court Hearing commenced, Mr Kelly reached an in-principle agreement with the employer and supervisor. However, Ms Stone was not a party to that settlement agreement and did not attend the Hearing.  

The Federal Court proceeded in her absence and found that Ms Stone breached sexual harassment laws under the Sex Discrimination Act 1984 (Cth) (the Act) when she sent 15 sexually explicit images to Mr Kelly, when he had ‘reluctantly agreed’ to receive only one. 

What happened 

Mr Kelly was employed by the Commonwealth (Services Australia) between 2006 and 2016. In 2016, he worked at the Hurstville Centre as a social worker alongside Ms Stone. Mr Kelly is sexually oriented towards men and had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). 

During his time at Hurstville, Ms Stone made various statements to Mr Kelly about his appearance, personality and sexual orientation, including that he ‘he could not keep his partners for very long because of his appearance and personality’.  

On around 21 July 2016,  Mr Kelly overheard Ms Stone in the workplace laughing with another colleague while looking at a computer screen. Mr Kelly looked at the image on the screen and did not understand it but chuckled in order not to seem awkward. Ms Stone asked if she could send Mr Kelly the image and he “reluctantly agreed”. A short time later Mr Kelly received 15 explicit images with a short accompanying text that contained references to homosexuality and body weight.  

Mr Kelly felt uncomfortable and confused after he viewed the images sent by Ms Stone and found them to be “confronting, distressing and offensive”. When Mr Kelly raised complaints about these images, Ms Stone said that they were ‘sent in good humour’ and intended to be a humorous joke.  

Mr Kelly became medically unfit for work on 27 September 2016 as a result of the conduct he experienced at work. Mr Kelly’s employment was formally terminated on 4 October 2018. 

What the court found  

The Court accepted the images were likely intended to be humorous, but that the images, viewed as a collection (which is how Mr Kelly received them) were sexual in nature, very vulgar and often demeaning, with some readily interpreted as homophobic. 

With consideration to the circumstances in which the images were sent, the Court found that a reasonable person would have anticipated the possibility that Mr Kelly would be offended, humiliated, or intimidated. It was also accepted that Mr Kelly agreed only to receive one of the 15 images, that this agreement was “reluctant”, and that the multiple images had been clearly unwelcome. The Court therefore concluded that Ms Stone’s conduct constituted sexual harassment under the Act. 

Key takeaways for employers 

Do your employees understand what sexual harassment looks like in practice? Sexual harassment is considered by Courts to be broader than just physical conduct or overt propositions to those with the same sexual orientation. Sharing sexually explicit images, even when intended to be ‘in good humor’, can constitute sexual harassment.  

Are your policies broad enough? Sending messages during work hours and in the workplace, even if on an employee’s personal device, can still constitute sexual harassment in connection with the workplace. Policies must reflect this reality, particularly in this ever-evolving digital age.  

Do you have effective response measures in place? The conduct in this matter was repeatedly framed as a joke and ‘in good humour’. This case reminds us that intention doesn’t matter, and that employers must ensure workplace culture does not tolerate any conduct that could reasonably offend, intimidate or humiliate another person. 

Is workplace culture supportive and inclusive? A safe and inclusive workplace culture requires a holistic approach; it is not just a tick-box exercise. Employers must ensure that their employees understand both the boundaries of acceptable conduct and the impact their actions may have on others.