22 – 28 April 2013
An employee of Oracle who won a sexual harassment case for $18 000, is likely to be left financially devastated after the court criticised her law firm, Harmers Workplace Lawyers. Comments had been made to her by another employee such as ‘I think we were husband and wife in our last life, … How do you think our marriage was? I bet the sex was hot.’ Last week however, Justice Robert Buchanan ordered her to pay the costs of both Oracle and Tucker after she rejected an offer to jointly settle her claim for $55 000. Buchanan said that this was disturbing and that it would have been for the sole financial benefit of her lawyers. The case highlights the risks of failing to accept a settlement offer. Ms Richardson is likely to be left financially devastated.
The Victorian Police is under fire from claims that there is a culture of systemic bullying that punishes victims rather than the aggressors. At least 20 members feel they have been bullied and had their complaints mishandled. Mr Knight, who is now unemployed, says he was continually targeted and belittled by his supervisor. Victoria Police has passed the investigations to external workplace consultants, such as Worksafe, and the results are due within the month. Worksafe says the default position of the force seems to be to side with the aggressor rather than the victim.
The recent suicide death of Queen’s Counsel, Christopher Branson, has drawn attention to the issue of depression in the law profession as a result of bullying. Australian DPP, Lloyd Babb, wrote a memo to staff warning them to stop bullying one another and requiring all victims to report all incidents so disciplinary action could be taken. There have been 2 suicides from the DPP in the past six months and almost one third of all DPP staff indicated they have been the victims of bullying. A collaboration of major law firms and the College of Law are attempting to raise awareness of the causes and impact of stress, depression and anxiety across the legal profession.
The operator of a Victorian aged care facility has been fined over $30 000 for discriminating against a woman returning from maternity leave. The company and Dalley have also been order to pay employee Ms Jelcic $5000 in compensation. Here the biggest concern was overnight work, the employer failed to take into account her family and carer responsibilities. Jelcic had previously worked six afternoon shifts, which were taken from her and given to other staff. Jelcic informed her employer that she could no longer work the overnight shift and he informed her that if she did not then this would be taken as notice of her resignation. This was a breach of workplace discrimination laws. Employers must consult with employees who are on parental leave before making any decision, which affect their position.
Is it ever ok to compliment colleagues on their appearance? Tone, context and a pattern of behaviour are important when it comes to unwanted remarks. Ms Fredeen notes that compliments alone don’t usually constitute unlawful sexual harassment. However, appearance can be a legitimate target of complaint if a person creates a distraction.
Qantas says it will not tolerate behaviour that could compromise passenger safety, after facing legal action for allegedly kicking a group of Aboriginal men off a plane. Qantas denies any discrimination saying this policy applies equally to all passengers. A hearing for the case is set to take place in a Sydney court in August.
Comcare premiums for AusAID have risen sharply. There have been 45 reported instances of bullying and harassment in the agency since December 2007 to March 2013. 30% of complaints required investigation and of those cases 70% resulted in psychological injury. AusAid is facing a growing problem of non-compliance with the public service code of conduct. There is concern that victims of bullying and harassment will be bullied further and pushed into informal resolution problems that do not adequately address the issues.
Workers who reasonably believe they have been bullied can apply to Fair Work Commission for an order to stop the bullying. This must involve repeated behaviour which is unreasonable and creates a risk to health and safety. Reasonable management action when carried out will not result in a person being ‘bullied at work’. The focus of these Fair Work orders is to resolve the matter and enable normal working relationships to resume.
Experts say that older people are being forced out of the workforce, which is bad for the workers and the nation. Ms Ryan, Age Anti-Discrimination Commissioner, says it is very hard to prove age discrimination and she advises people think carefully about leaving the workforce.
15 – 21 April 2012
An anti-bullying advocate says that there needs to be a greater preventative culture for workplace bullying in New Zealand. One in four doctors have reported being bullied in Australia; this is similar to New Zealand. The bullying is mostly psychological, involving humiliation, disempowering and intimidating people, and setting them up to fail.
The Australian Human Rights Commission has expressed serious concerns that people with disabilities are being unfairly treated by the legal system. There are a number of alleged assaults not being prosecuted due to lack of support for the victims. Commissioner Innes said this sent a clear signal to perpetrators that they could abuse people confident that cases against them were unlikely to proceed. Mr Innes outlined key barriers to equality for people with disabilities: (1) lack of access to community support and programs to prevent violence, (2) a lack of help navigating the criminal justice system, (3) negative attitudes and assumptions about people with disabilities.
BHP Billiton has attacked the government’s second round of changes to industrial relations law. They said flexible working arrangements; additional rostering consultation, new anti-bullying provisions and right of entry charges were unfair on businesses.
This concerned an inquiry by an employer as to whether they could dismiss an employee based on lack of performance, as a result of the employee taking excessive sick leave. Aunty B replied that the decision to discipline must be based on their capacity to do the inherent requirements of their role – with reasonable adjustments for sickness, family responsibilities etc. An employer must clearly assert performance targets required by the employee and discuss this with the employee. There must be a review period but if there is no improvement moves can be made to terminate.
Employers who do not have effective procedures in place to manage workplace bullying could find themselves under investigation. Proposed changes to Fair Work Act mean the Commission may subject employers to wide-ranging orders. Employers must be able to demonstrate they have a thorough understanding of the processes to manage and investigate workplace bullying.
Workplace bullying victims will soon be able to go to Fair Work to seek an order preventing offenders from continuing to harass them. The new provision will come into effect on July 1. The focus of the law is to stop bullying before it goes too far.
Job seekers with foreign sounding names could be missing out on job interviews because of habitual workplace discrimination. Researchers from ANU submitted 4000 fictional applications for entry-level jobs and found those with non-Anglo sounding names had to submit more resumes in order to gain an interview. Someone with a Middle-Easter name must submit 64% more applications, Chinese 68%, Indigenous person 35% and an Italian 12% more. A study also showed that job seekers felt more discriminated against on the basis of ethnicity while looking for a job, than once they had actually secured a role.
To achieve equality of opportunity, men and women must share more evenly the responsibilities bundled up in what are seen as traditional gender roles. Men can help gender equality be engaging more equally in unpaid caring work with their partners. The disproportionate responsibility of women raising children is one of the main sources of disadvantage. To remedy this there needs to be an increase in the availability of paid parental leave, childcare and access to part-time work arrangements.
A female graduate lawyer who was sexually harassed during her practical legal training placement has won a large award of damages. She had been repeatedly propositioned for sex, subjected to persistent sexual comments and advances, her employer engaged in unwelcome massage and touching, showed her a pornographic video of himself having sex with a prostitute. This culminated in an assault in a car park. Justice Garde found that PLP had hounded and pressured GLS for sex and sexual favours. His Honour rejected PLP’s claim that GLS could have refused his physical groping and request for sex with more force. Justice Garde said that – ‘if an employer does engage in sexual harassment of an employee, it is not appropriate to criticise [the employee] on the basis that she should have handled the sexual harassment better…’ It was found that GLS suffered from embarrassment, revulsion, guilt, social withdrawal, sleep disturbance and increased appetite. PLP was ordered to pay $100 000 in damages to GLS.
The decision over whether an employee who was injured whilst having ‘vigorous sex’ on a business trip could seek compensation may appear before the High Court. The Federal Court allowed the claim for the woman’s injury and Comcare is now seeking to appeal in the High Court. This has been one of many cases where Comcare has been ordered to pay compensation. The cost of injured public sector workers grew to $322 million last year. Peter Hanks, QC, said that the federal scheme was open to significant risk for a substantial level of fraud that did not exist in other worker’s compensation schemes.
Employees are threatening and intimidating their bosses in a new trend of reverse bullying in Queensland. Discontented employees are retaliating by abusing superiors or making false complaints against them. Female bosses and younger manager are the main targets of this upwards bullying. Mr McSwan, an employment lawyer, said that these cases were likely to increase with new-anti bullying laws.
8 – 14 April 2013
Safe Work Australia released its first report on work-related mental stress and its associated costs based on an analysis of Australian workers compensation claims data from 2008-09 and 2010-11. Mental stress claims result in workers being absent from the workplace for long periods of time. The loss of productivity and absence of workers is costing Australian businesses more than $10 billion each year. The report shows that the highest rates of mental stress are where workers have high levels of responsibility for the well-being and safety of others. Other findings include that these claims are the most expensive types of compensation claims. They are predominately made by women and more professionals make claims than any other occupation.
Elizabeth Broderick says pregnancy and return-to-work discrimination represents about 20% of complaints received by the Australian Human Rights Commission. The proportion of women in the top 200 ASX companies has remained below 5% in the past decade. However, in the public service the number of women in managerial positions has risen from 35% in 2002 to 46% in 2012. Ms Broderick says that men need to do more to change business culture. Men need to make visible their caring responsibilities so that a message is sent that you can be a serious player at work and an involved parent.
A NewsLifeMedia survey of 6253 women has found their careers take a back seat when they have children. 85% of Gen Y women rate their career as important or very important, only 2/3rds of mothers give work the same priority. One in three women is stressed by the inability to progress their career due to commitments at home. Ms Broderick has urged mothers to stay attached to the labour market by working part time because otherwise it is very hard to get back into the labour market after having children.
Migrant community groups have called for reform to racial vilification laws in NSW. Mr O’Farrell last year launched an inquiry into the vilification laws; he believed they were ineffective because there had not been any successful prosecutions, despite over 27 public complaints. The inquiry will focus on s20-D, the criminal offence of ‘serious racial vilification’ which requires proof ‘beyond a reasonable doubt’ for prosecution. The law currently is focused on physical harm and should be extended to cover verbal insults. The report will hand down its final recommendation by May the 31st.
Workplace conflict at CSIRO is driving staff away. A group of former disgruntled staff created a blog that discussed the organisation as having jettisoned pure science and as having a toxic workplace where bullying is rife and outrageous behaviour by some managers has been ignored. In December Comcare issued CSIRO with a legal notice ordering improvement of the way it handled workplace misconduct.
Tasmania’s State Service Commissioner’s annual report reveals that women make up 70% of the public sector but that men in senior management positions outnumber women three to one. Elise Archer said that although there was a lack of senior women across private and public sectors, the continuing pay gap was disappointing.
An accusation of bullying and a business culture at hospitals is being rejected by the chair of Waitemata and Auckland District Health Board. Ian Powell said that both health boards were vulnerable due to a high level of internal dysfunction. A Labour health spokeswoman Annette King said that Mr Powell was right to raise alarm bells about the top-down culture in hospitals.
A Swedish woman has won a gender discrimination case against her former employer because she was forced to wear a badge stating her bra size. The woman worked in a lingerie store and despite her objections she had to wear a sign stating her name, chest measurement and cup size. Her employer argued that it was to help customers understand bra sizes. The court held that this was discriminatory and the woman’s dignity had been violated.
1 – 7 April 2013
The Commonwealth public service must change if the costs of its worker’s compensation claims are to be reined in. Bureaucrats on compensation for psychological injuries are coming back to work five times slower than those physically hurt on the job and workplace culture is to blame for many of the mental stress claims. The $1.2 billion Comcare scheme lost more than $500 million in the 2011-12 financial year with psychological claims increasing and injured workers taking longer to come back to work. 147 recommendations to effectively rewrite the Safety Rehabilitation and Compensation Act have been made. One of the recommendations made is that there should be time limits on Comcare to determine a claim for compensation.
Employers are fearful of dealing with workplace bullying. Confusion of not knowing whether bullying is an employment, workplace health and safety, administrative or governance issue drives this fear. Understanding issues and managing them appropriately are the only real ways to successfully manage bullying complaints as an employer. The legal complexity surrounding bullying is created by the fact that there is no single cause of action or piece of legislation that governs bullying. This complexity led to the government inquiry into workplace bullying. Following which the government aims to introduce a number of changes from July 1 this year. These are significant changes that will affect both public and private sector employers. Complacency in relation to these changes and failing to put systems in place to effectively handle bullying complaints now mean that, when these changes are introduced, employers could face numerous claims and potential fines. Changes will require public service commissioner to conduct a review of how the fitness-for-duty test and referral for medical examination powers are used by the Australian Public Service.
Australia’s main public sector union says workplace pressure is leading to more workers’ compensation claims from psychological injuries. A review of Comcare found a 30% increase in mental stress claims and that those cases were four ties more common in the public service than with other employers. Peter Hanks has suggested government-enforced efficiency dividends; constant performance evaluations and changing workplaces were placing more stress on the nation’s bureaucrats.
UWA is embroiled in allegations of sexual harassment and victimisation in its school of dentistry. An associate professor, Lena Lejmanoski, is claiming she was punished by being demoted and assigned changed duties after a confidential settlement over her initial complaint. Details of the allegations were revealed in a Federal Magistrate’s Court decision that rejected Dr Lejmanoski’s bid to suppress her legal action against UWA and have the case heard in a closed court. Dr Lejmanoski is seeking compensation from the university. The decision handed down last week reveals Dr Lejmanoski raised an allegation in May 2009 that her immediate superior sexually harassed her. She alleges that after the complaint, claims were made against her over alleged workplace failures and her right to private practise was suspended and her teaching duties were restricted. Dr Lejmanoski lodged a formal complaint with the WA Equal Opportunity Commission in October 2010 and a confidential agreement was reached with UWA in November 2011. Since Dr Lejmanoski has launched Fair Work proceedings in Federal Magistrate’s Court, claiming UWA has failed to honour the agreement and its terms. In her application for suppression Dr Lejmanoski argued that she needed to continue to work with other professors and that her ability to discharge her role would be negatively affected if she were subject to discussion or innuendo in the workplace. However, Mr Lucev held that embarrassment was not enough to justify suppression.
Samoan Air is about to start charging customers based on their weight. Passengers will be charged based on the total weight of themselves and their belongings. However, such a practice could lead to discrimination as it may lead to price discrimination against overweight people. There is currently a case in Canada before the Human Rights commission against airlines, which had started to charge for two seats for larger passengers, as discrimination based on physical structure. Legally, it is only discrimination if the extra fee was based on obesity, which could be argued as a disability, but if it is only on the basis of weight than it may be legal.
Nearly a million Australians feel their boss has discriminated against them over recent years. 854 000 workers feel discriminated against by their employers. 480 000 workers suspected their employer had discriminated against them because of their age, while 270 000 felt they had been discriminated against on the basis of their gender. Age discrimination is also widely reported among job seekers, with 300 000 older Australians feeling unfairly judged when applying for a position.
Employers have been warned they cannot fire an employee for simply being late. A Fair Work Commissioner said that a continued failure to attend work on time isn’t enough to justify immediate dismissal. Excessive lateness can be categorised as a serious issue but only when it has been clarified correctly. Businesses can’t just fire an employee for being late, instead there needs to have been a pattern of behaviour, and the business needs to have clearly outlined warnings around these instances. Only then can a termination occur.
In Australia the law punishes pursuers and grants victims’ damages for the harm caused by harassment. Sexual harassment claims are usually between $10 000 – $20 000. Employment partner Kate Jenkins at Freehills, says that consensual relationship at work give rise to a much higher risk of sexual harassment or bullying claims. For employers and the parties involved, raising the problems openly can be difficult, particularly if one of them is married. Individuals at senior or supervisory levels are often required to sign provisions in their contract that require them to disclose circumstances that could give rise to conflicts of interest – including relationships. Failure to disclose the relationship can result in summary dismissal. However, there is a strong belief that love contracts won’t work simply because of the greater cultural resistance in Australia. Companies are better off investing in policies and training to demonstrate compliances with laws around discrimination, harassment and bullying, rather than rely on contractual documents. Many US formulations of love contracts contain language that purports to operate as a waiver of the employer’s liability if a sexual harassment claim arises between the parties to the contract. Under Australian law this waiver would not be effective.
A woman running a breastfeeding support group on Facebook has been banned from the website on several occasions. Ms Kemp started the group to fight discrimination, which she felt on account of trying to feed her child in public. People could post photos of themselves on her page. However, one such photo got Ms Kemp locked out of her account for 24 hours while a second one prompted a three-day suspension. The photos were also removed, citing Facebook policy violations. However, Facebook has since apologised stating the removal of the photos was an error. This is similar to an earlier case where Gina Crosley-Corcoran incurred multiple bans over posting photos featuring ‘inappropriate’ content while aiming to normalise breastfeeding on Facebook. A Facebook spokesperson issued a statement about not accepting shots of exposed private parts on their site.