30 December 2013 – 05 January 2014
Tasmania’s business groups fear new workplace bullying laws will prompt a tide of frivolous complaints and spark a rise in ‘hush money’ payouts. Australia’s new workplace bullying laws allow workers to apply to the Fair Work Commission seeking a formal order to stop bullying. However, it says that bullying does not apply to reasonable management action carried out in a reasonable manner. Mr Bailey has said that there is now a blur between performance management and harassment and it means a disgruntled employee can look back through their work life and pull up examples that could technically be seen as bullying.
Confusion has erupted over the reach of anti-bullying legislation two days after the reforms came into effect. It has become apparent the measures do not cover defence employees, state public servants and some small businesses.
Graeme Innes is concerned that too many of the state’s top lawmakers are unwilling to change the justice system in order to make it fairer for people with a disability. The Australian Human Rights Commission has found that discrimination against people with a disability is widespread in Australia’s justice system. There are numerous barriers to people with a disability accessing the justice system. Mr Innes hopes after the commission’s final report is released in February it may push some of the states to change their practices.
Victoria Police has pledged to eliminate racial bias in its ranks. The moves follow a sweeping inquiry into how police engage with the community and whether police cross-cultural training is sufficient. It was launched as part of an agreement to settle a racial discrimination case in which six young African-Australian men alleged racial profiling within the force. Police Chief Commissioner Ken Lay rejected allegations that racial profiling was institutional. Police have also pledged to address racial bias officers may carry into their policing subconsciously.
Sophie Monk has become the first Australian celebrity to have a cyber stalker charged with harassing her online. Monk endured five years of harassment from suspect James McCabe who sent her 150 threatening and sexually explicit Twitter messages. Monk contacted police after McCabe allegedly sent her and a family member death threats.
More than a third of Victoria’s Commonwealth public servants will consider quitting their jobs within the next two years. Most employees who planned to leave cited lack of career prospects as the key factor. More than 10% from all states and territories intending to leave blamed a perceived experience of bullying and harassment. The average unscheduled absence rate increased by a half a day in the past financial year to 12 and sick leave rates also increased. Victorian public sector employees are also the least likely to report bullying when they see it compared to workers in other states. Of employees who had witnessed bullying in the workplace, only 33% said they were likely to report it.
Awareness of bullying and discrimination in Australian workplaces is on the rise. A survey found that 73% of employees were aware of when their workplace rights had been breached through bullying or discrimination. This is an increase of 7% since 2012 which marks a good climate for the anti-bullying jurisdiction changes to the Fair Work Act 2009.
23 – 29 December 2013
Tim Wilson’s appointment as Human Rights Commissioner could see cuts to a program on school bullying so as to accommodate his six-figure salary. Professor Triggs said that in order to accommodate for Wilsons salary anti-bullying programs and a program on education for older Australians might be in the firing line. The commission had not anticipated it would have to pay Mr Wilson’s salary as new appointees usually come with extra federal government funding.
The Australian economy is losing about $10 billion a year by not utilising the skills of the country’s older workers. Age discrimination is a lot more common than most people think. The Human Rights Commission estimates that about a third of Australians 55 years or older want to work but can’t find employment.
Marks and Spencers staff have been allowed to refuse to serve customers buying alcohol or pork products on religious grounds. This raises interesting issues about rights of religious freedom in the workplace. Internationally there have been a string of cases involving this area this year. The Equality and Human Rights Commission published a good practice guide for employers on how to manage religion and belief in the workplace. Essentially Marks and Spencers did not have to implement this policy but employers should be careful that they have good grounds to insist that its workers compromise their religious beliefs. The guide encourages employers to take a balanced approach and engage with staff through discussion to find a solution. So far courts have resisted attempts to establish an absolute right to religious privileges in the workplace.
As of 1 January 2014 workers who believe they have been bullied can apply to the Fair Work Commission for a ‘stop bullying order’. The FWC has now released the Anti-bullying Bench book and the Anti-bullying guide to flesh out these new practices. Complaints will be subject to a screening process. The employer and the alleged bully will then be provided with an opportunity to respond. The FWC then has the power to knock out complaints at that stage. President Justice Ross has also underscored that the jurisdiction is not about compensation. The FWC has revealed it is expecting a significant number of complaints.
The public service is losing three times as many people with disabilities as it is hiring and numbers are hitting a 20 year low. The number of people with disabilities employed as public servants has been falling continuously since 2007. In 2013 there were just 4450 people with disabilities employed, the lowest number in two decades. Public servants with a disability were also more likely to resign from their jobs and less likely to retire compared with other workers. Graeme Innes believes that targets tied directly to department secretary’s pay bonuses were among measures necessary to remedy the problem. Without significant commitment towards changing the situation at senior levels nothing would happen.
Bullying complaints could swamp the Fair Work Commission because the Gillard Government did not put in adequate methods to filter out dubious or unsuitable claims. A corporate law firm has warned businesses need to take steps to ensure they do not become the ‘poster child’ for the new bullying jurisdiction. The commission must deal with all complaints within 14 days but cannot order that compensation be paid and can only direct the employer to stop the bullying. The commission has predicted about 3500 bullying claims could be made next year. There are concerns that these new laws will lead to a rush of complaints.
A government agency has told three women one blind, one pregnant and one who was injured at work that they are likely to lose their jobs. The union representing the three employees is investigating whether they were discriminated against. However the legal office said its decisions were in no way influenced by the staff’s disability, pregnancy or history of injury. The agency’s head has defended the fairness of the decisions and said that the agency followed a rigorous and transparent process in deciding where to make cuts.
In the decision of Hunter the FWC ruled that an employee’s dismissal was not harsh or unreasonable on grounds that by making vexatious allegations of misconduct against his manager, the employee acted in a way that was deliberate and seriously unsatisfactory.
The case of Little underlines the importance of employees understanding what is expected of them in their online behaviour. Mr Little posted on his Facebook page: ‘on behalf of all the staff at The Credit Corp Group I would like to welcome the newest victim of butt rape. I’m looking forward to sexually harassing you behind the stationary cupboard big boy.’ After his employer discovered this he was warned for making comments in breach of the company’s policies in company time. Mr Little didn’t deny the comments but emphasised that he made them during his own time and where therefore not his employer’s business. However, Deputy President Sams said that it did not matter because the applicant was bright enough to know what he had done would be a problem and that the joke would be highly offensive to a colleague. The commission upheld his dismissal.
Mobbing is a new form of bullying emerging in the workplace where a bully enlists co-workers to collude in a relentless campaign of psychological terror against their target. This form of bullying leaves the bully isolated. Gossip and innuendo is often spread about the target, often before they become aware that it is happening. At least 30% of bullying is mobbing and the tendency is rising.
16 – 22 December 2013
Moelis Australia has settled its legal dispute with former vice-president Julia Ward who had claimed she was a victim of bullying and sexual discrimination. Following mediation it is understood an agreement was reached to pay her about $150 000, well below the $1 million she demanded before negotiations started. Moelis maintained its innocence in the mediation but opted to settle to avoid the more public limelight of a court case.
BHP and its contractor Carey Mining have been accused of discriminating against a deaf worker after terminating his employment. A claim has since been lodged with the Australian Human Rights Commission. Myers, who was dismissed, is deaf but wears hearing aids and a cochlear implant. He has a range of qualifications that allow him to operate heavy vehicles and machinery in construction and mining. In a medical assessment he was declared fit to work but was sacked days later. Myers is arguing he was unlawfully discriminated against because of his disability.
A contractor accountant has recently been ordered to pay $476 000 in damages for sexual harassment. It was alleged that the contractor engaged in multiple instances of sexual harassment towards an employee, including inappropriate gestures, language and physical contact, and forcing the employee to engage in sexual acts following a work function. Employers should be aware that a workplace extends to areas associated with the workplace and that conduct outside of working hours can also expose an employer to liability.
Graeme Innes has warned the government against cutbacks to the NDIS. Joe Hockey said after the budget update that although the government was determined to deliver the NDIS it had to be affordable. The NDIS is predicted to cost more than $22 billion a year when fully implemented. Graeme Innes however said that efforts to help Australians with disabilities move off welfare and into jobs would improve the economy.
A clash is looming between new freedom commissioner Tim Wilson and his AHRC colleagues over amendments to provisions of the RDA. Mr Wilson believes that s18C of the RDA should be unambiguously repealed. But others in the commission do not agree and have said that s18C merely needed to be ‘tweaked’ rather than abolished.
The Fair Work Commission has ruled that staff that make false bullying claims against their bosses can be sacked. The Commission threw out an unfair dismissal claim by a North Queensland Department employee who was fired after tyring to frame his supervisor as a bully and plotting with a colleague to ‘play the Indigenous card’ to entrap him. The Commission found the worker began complaining after the manager asked him to improve his performance and attendance at work.
Scared public servants are being granted anonymity and silent phone numbers to stop angry Australians abusing them on social media. Bullied bureaucrats have been stalked, spammed and sworn at by members of the public using social media and email. Employee’s personal details, including home address and car registration details have even been posted online. The APSC says government agencies must balance efficient service delivery with the safety and wellbeing of employees. Agencies may have to consider a less personalised approach where employees are not identified by name.
Russel Tate, the executive chairman of Macquarie Radio Network has accused Ray Hadley of being a psychotic bully. In proceedings brought by Mr Palmer the NSW District Court has also heard that Mr Hadley intentionally inflicted emotional harm, assault, false imprisonment and was negligent towards Mr Palmer. Mr Hadley has denied the claims. The hearing is likely to be next year.
A former Victorian corrections officer has been awarded a six-figure payout after years of workplace bullying. Ms Dawson accused the Department of Justice of failing to act when a fellow officer who later became her manager was bullying her. She had to take time off work due to distress, anxiety, panic attacks and depression. When she returned to work she was bullied again. Justice Bourke found that the woman’s ongoing suffering was caused by management’s failure to address her bullying complaints and awarded her $125 000 in damages. Ms Dawson alleged that her manager had repeatedly yelled at her and subjected her to humiliating and demeaning treatment.
How to survive a Christmas party disaster?
The best thing to do if you have embarrassed yourself at a work event is to apologise as soon as possible after the event. This may be received better if it is sent as a note or card, as an email does not have the same degree of ‘sorriness’. It is important to not ignore your behaviour and hope other people will just forget about it. Office parties are notorious for overindulgence, which leads to embarrassing incidents, sexual harassment, violence or injury. A US survey found 13% of people have been to an office party where there was inappropriate behaviour and 43% said there had been drunkenness and drug abuse.
South Australia will become the latest jurisdiction to implement harmonised workplace health and safety laws. The regulations will take effect on 1 January 2014 and aim to further enhance the safety of South Australians. Some of the key regulations that will apply include the introduction of a safe work method statement required for high-risk construction work.
BHP has been ordered to pay $60 000 after a court found the company breached industrial laws when it dismissed two CFMEU officials. BHP said the men were let go for breaching workplace conduct after allegations they bullied and threatened another employee over his decision to resign from the union. However, the federal court said it found no evidence to support the alleged threats.
Credit Corp was justified in firing an employee who made critical comments of one of its clients in a Facebook posting. Deputy President Sams of the FWC said that although Mr Little was entitled to hold any views about the organisation he was not entitled to do so in a manner which injures the employer’s business. The separation between home and work is now less pronounced than it once used to be. Little argued that he didn’t intend for his information to be publicly accessible and didn’t understand how the social media’s privacy settings worked. However, Sams wrote that he believed this to be highly unlikely for a young person who frequently used Facebook.
A clerk who accused retired magistrate Mr Baldino of sexual harassment, twisted his words, fabricated some of her claims and cannot be believed, a tribunal has found. The Equal Opportunity Tribunal dismissed Ms Ramstrom’s complaint against Mr Baldino. It said that Mr Baldino’s invitation to Ms Ramstrom to have drinks in his hotel suite was not unreasonable in mainstream Australian culture. It found that the comment about spanking was clearly intended to be light hearted and, in the context of their friendly working relationship, not sexual harassment. The tribunal found that some of the behaviour attributed to Mr Baldino did not meet the legal definition of harassment while, in other cases, Ms Ramstrom had twisted his words to add sexual overtones.
09 – 15 December 2013
A woman will be awarded almost $500 000 for sexual harassment by a male co-worker after a judge found he had untoward sex with her after a work function. This will be the highest award ever for sexual harassment. While Mr Vergara was accused of rape he was never charged, Justice Bromberg found he engaged in unwelcome sexual intercourse with Ms Ewin.
The APS has the right to dismiss bureaucrats who make false bullying claims against their bosses. The FWC threw out an unfair dismissal claim by a north Queensland Environment Department employee, who was fired after trying to frame his supervisor as a bully and plotting with a colleague to play the indigenous card to entrap him. Mr Hunter was sacked in May for multiple breaches of the public service code of conduct in his vexatious and deceptive pursuit of his boss Mr Bensley. His complaints began after he was asked to improve his performance and attendance at work. Mr Hunter then compiled a grievance document running to 100 pages against Mr Bensley, which the department found to be false and vexatious and resulted in his sacking in May 2013.
With more changes to the Fair Work Act on the horizon employers should update employment policies and check they comply with the amendments. Among the significant amendments is that someone who has been bullied at work will be able to apply directly to the FWC for an order to stop the bullying. An employer will therefore have little time to investigate, assess and respond to a claim. Employees must comply with reasonable and lawful directions of their employer. If they don’t comply with policy it is theoretically a breach of contract.
Hundreds of Education Department employees claim they have been bullied or witnessed bullying at work. The questionnaire asked 1191 employees and showed that overall job satisfaction was deteriorating. 38% of respondents said they witnessed bullying in the past 12 months compared to 34% in 2009. 20% reportedly experienced bullying in 2013 compared with 15% in 2009. However, only 2% of respondents submitted a formal complaint about bullying compared with 3% in 2011.
A third of Australian believe they have been bullied in the workplace as awareness levels of workplace rights have jumped 7% in the past 12 months. A survey of more than 5500 people found 73% of people are aware when their rights have been breached as a result of bullying or discrimination. This may mean that while the number of people bullied at work has increased this is probably because people are more comfortable talking about the issue rather than the actual number of people being bullied changing significantly. 48% of respondents also reported witnessing a colleague being bullied in the workplace. 85% of respondents said all employees should have mandatory anti-bullying and anti discrimination training prior to commencing employment.
Two employees of Victoria’s largest non-governmental disability service have been accused of serious sexual misconduct, in cases that come after a third employee was jailed for rape. The cases have prompted fresh calls for the state government to ban disability workers from the sector if they are found to have engaged in serious misconduct. Supervisor Colin Hoyle is facing multiple counts of rape and indecent assault of a person with a disability. A colleague was also sacked after facing allegation that he engaged in inappropriate sexual behaviour with a disabled worker.
George Brandis has won the cautious approval of a delegation of community and religious representatives in his quest to amend the RDA which prohibits remarks that offend others on grounds of race or ethnicity. The delegation met for over two hours and was satisfied the government was approaching the review of the section with caution and tying to strike an appropriate balance between freedom of expression and freedom from vilification.
A surprisingly large sample of older workers felt their company had thrown them on the scrap–heap and that recruiters unfairly viewed them as unsuitable for too many roles. The federal government wants workers to retire at 67 but the average retirement age is about 59. But this raise the question, how many people retire out of choice or simply because they no longer have meaningful employment?
South Australia has become the first state to sign up to a national anti-racism strategy after World Human Rights day highlighted the existence of discrimination in Australia. The premier Jay Weatherill has committed his state to the ‘racism, it stops with me’ strategy, which encourages all Australians to stand against racism. 75% of Aboriginal people experience racism in their everyday lives. It is hoped that this will encourage the other states and territories to stand against racial discrimination.
After enduring a nine-day inquest into the death of Alec Meikle, his mother told reporters her son had been treated appallingly at Downer EDI. Alec killed himself at his aunt’s home in New Zealand in October 2008 after allegedly suffering months of abuse from senior colleagues while employed at Downer EDI. He was verbally abused, burnt with a welding torch and had his mistakes publicly recorded on a chart that threated anal rape by a steel pole if he notched up a certain count. His mother said at the inquest that Alec had been singled out from day one and that the workplace had facilitated his abuse.
Workers have won new legal powers to dob in a bully forcing bosses and colleagues to hand over sensitive personal and medical details to the FWC. The new bullying ban will give workers the right to seek an apology, a transfer or a change of roster. But bosses yesterday warned that workers could abuse the system to blackmail them for go-away money. Masters Builders Australia chief executive Mr Harnisch said employers would now have to prove they had not bullied a worker. The FWC admits that complaints could result in unwarranted damage to people’s reputation.
The Federal Court has determined that a female employee who was sexually harassed and assaulted by a male contractor was entitled to damages of $476 000 from the contractor. The employee E worked as an accountant and the contractor V was also an accountant who had been placed with the company by his employer. V made several sexual advances to E all of which were rejected. The court found that he pursued here in an aggressive and persistent manner including telling her numerous times that he wished to have an affair with her, that he went running each day because thinking about E gave him a hard on, that he masturbated for relief and that he wanted to ‘f… you over your desk chair till you scream’. He also attempted to kiss E. Then after a work function V pinned E against a wall and E was seen to be remonstrating angrily with him. E, who was heavily intoxicated, entered the toilet where she was sick and she subsequently lost her memory of events for two hours. E left and went to the offices where V was also present. The court accepted that he engaged in unwanted sexual activity and intercourse with E in a corridor outside the LLA offices.
The court found that V, as a contractor, was a workplace participant. V suggested that his conduct was not covered by the SDA, as it did not occur wile the parties were working and that it was in a corridor outside the workplace. The court rejected the notion that out of hours conduct was not covered by the Act.
The office of Tasmanian labour senator Helen Polley has been investigated over several allegations of bullying and harassment. Comcare has confirmed it has investigated the circumstances surrounding three allegations of bullying and harassment this year. The investigation found an unhealthy workplace culture, which was having a negative impact on morale, health and well-being. Senator Polley has rejected these allegations. Comcare has made 16 recommendations to the Department of Finance, including that improvements be made in the way the office is run.
02 – 08 December 2013
A WA school was forced to apologise over a racial discrimination complaint lodged by a family whose child was told their hair was untidy. The child’s mother argued that because of her child’s mixed cultural heritage, the child had naturally curly hair. The school apologised over the incident and agreed to change its hair policy to recognise different cultural and ethnic characteristics.
More than two-thirds of female media workers have experienced abuse and harassment at work. The harassment included verbal or physical intimidation, threats or abuse. Almost 46% of respondents had experienced sexual harassment at work, with 13% admitting experiencing sexual violence. The research found almost 60% of sexual harassment happened in the office with 49% occurring in the field.
From 1 January 2014 a majority of Australian workers will have access to a new regime to deal with allegations of bullying in the workplace. The new provisions will enable these bullying complaints to be heard as industrial disputes in the FWC. The FWC jurisdiction now covers complaints from workers who are ‘bullied at work’. A person is bullied at work where an individual or group repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety. A worker may make a complaint if they are in a constitutionally covered business and reasonably believe they have been bullied at work. This new jurisdiction will change the dynamics in the workplace for resolving bullying complaints.
Local employment options, body image and gender and sexual equality and discrimination rank highly in the minds of young Tasmanian’s. The survey polled more than 300 Tasmanian’s aged 15-19 and found that more than 20% saw employment in their top three national issues. Less than four in ten respondents were happy with the amount of local opportunities in their area. Equality and discrimination jumped into equal first this year as the issue most important to young people.
A Sydney wharfie sacked for punching and kicking his bullying manager in the head should have been reinstated because he was set up by his boss who exploited the working-class employee’s value system. FWC vice-president Michael Lawler made the finding.
A psychologist who said he was bullied at work has been paid $7500 for injury to his feelings on top of three months pay after it was found he was unfairly dismissed. This was based on a report saying that another co-worker was aggressive and belittling to him and that his team leader failed to stop this behaviour. His resignation was found to be a result of DHB’s breaches and amounted to a constructive dismissal.
A teenage apprentice was set alight, feared being raped and had a chart of his mistakes publicly displayed in his workplace, an inquest into his death has heard. Alec Meikle had begun work as an apprentice engineer at Downer EDI in January 2008. His father has said that his son was verbally abused from day three when he was called a ‘useless f***ing c***’ everyday by his supervisor, Mr Wiggins, and other tradesmen. It is alleged that Mr Wiggins was the main culprit and instigator. His colleagues also kept a chart of his mistakes at the workplace and he was concerned that once the chart had been filled his colleagues would anally abuse him. Another time when colleagues were critiquing his work they sprayed his arm with flammable liquid and set his arm on fire for several seconds. Alec’s father said his son became abusive, sullen and withdrawn at home during his time as an apprentice. After taking stress leave he quit his job in September 2008, but then hung himself in October. An internal investigation by Downer EDI found that he was given little supervision at work, was doing work beyond his capacity and that the chart created for him was inappropriate, offensive and derogatory.
Mr Wiggins, the supervisor accused of bullying Alec Meikle has admitted he let the youngster down but insists he never abused him. Mr Wiggins says he is shocked by the allegations and never abused his trainee. He said that colourful language was often used on the work floor but never hurled as abuse. Mr Wiggins said he had seen Alec laughing about the so-called ‘sphincter dilation chart’ but realised the chart was more than just a crude joke when he learnt Alec had made a formal complaint.
Two women who knocked back settlement offers after Virgin Australia made them redundant have been ordered to pay most of the airline’s costs. The airline offered Kirsty Aitken and Leonie Vandeven $70 000 each after they were made redundant. Ms Aitken was on maternity leave and Ms Vandeven was 4 months pregnant. The women plan to appeal the original decision, which cleared Virgin of unlawful discrimination. Judge Burnett said that the applicants were in no position to adopt the moral high ground, as they had been quite willing to trade their rights for money if the price could be agreed.
The end of year Christmas party can be a chance for employees to let their down but the combination of alcohol and workplace tensions has the potential to turn an end of year celebration into a perfect storm of inappropriate conduct. The High Court held recently that a sufficient connection or association with employment might be found if an employer has encouraged an employee to be present at a particular event. It is easy to forget that work functions are an extension of the workplace and employers can and should expect employees to maintain the same standard of conduct at the Christmas party as would be expected in the office. Employers still have a duty to ensure the safety of their staff at the party and can be vicariously liable for employee conduct that contravenes harassment, discrimination and workplace safety laws.
So many workers compensation claims were lodged in the past year that they blew a financial hole in the national insurance scheme. Comcare is blaming a rise in mental stress claims for the budget blowout. Psychological injury costs continue to rise and the length of time ill and injured people are away from their work has worsened at public sector workplaces. Payments came to a total of $309m, which is an 11% jump from last year.
A group of Victorian police officers have lost a fight to keep their long hair and beards after a tribunal found that the police force policy was not discriminatory. The group of officers were challenging the decision to ban men in the force from having beards, arguing they were discriminated on the basis of their physical features. Lawyers for the police argued that facial hair was not a form of protected expression and that the ban was a permissible exemption.
Local councils who force disabled residents to pay to access public toilets could be in breach of the Disability Discrimination Act. Residents in Cessnock were being required to pay the council to purchase a key to access public amenities like toilets and swings. The council said the policy was aimed at curbing vandalism as well as providing 24-hour access to disabled people. However Craig Wallace from People With Disability Australia said it is illegal to charge someone for a public amenity that other people are receiving for free.
Hundreds of Education Department employees claim they have been bullied or witnessed bullying at work, an internal staff survey revealed. The survey showed overall job satisfaction was deteriorating falling to 65% this year. In total 38% of respondents said they witnessed bullying in the past 12 months while 20% reportedly experienced bullying in 2013. However, only 2% of total respondents submitted a formal complaint about bullying. This survey comes after the state government slashed hundreds of jobs from the Education Department. This has lead to excessive workloads and stress as people are often expected to do two or three jobs.