25 – 03 March 2013
A federal court judge in Australia has ruled that the country’s ban on same-sex marriage is not gender discrimination since neither gay men nor lesbians are allowed to marry under the legislation, and thus both sexes are treated equally. Justice Jayne Jagot wrote that the redress for these circumstances lies in the political and not the legal arena. Jagot J noted sex discrimination was based on a comparison between the treatment of the person of one sex with the treatment of the opposite sex. Under the Marriage Act, marriage is defined as the union of a man and a woman to the exclusion of all others.
Courts are scrutinising sexual harassment claims more carefully. In Richardson v Oracle Corporation Australia the plaintiff was awarded $18, 000. Her original claim had been for $450 000. A key part of the decision was Buchanan’s J view of how liable the employer was for any change in the plaintiff’s economic position as a result of the sexual harassment. Ms Richardson was part of a project team with Mr Tucker. Tucker began to make sexualised comments about their disagreements, saying they were married in a previous life and ‘I bet the sex was hot.’ After months of similar offensive comments Richardson notified her manager and Human Resources. An investigation was launched and once completed Tucker was found to have harassed Richardson and the two were separated at work. Richardson was directed to work on other projects, which she considered a demotion. She decided to resign not long after the investigation. She then took a similar job for a slightly lower base pay with another company.
Apart from the psychological and physical harm caused by the stress of the sexual harassment, Richardson claimed she had been victimised and forced to resign. Buchanan J rejected these last two claims. Oracle was vicariously liable for the harassment unless they had taken all reasonable steps to prevent the harassment. Although Oracle took action once they became aware of the harassment, its internal policies and training let it down, because although they said sexual harassment was against company policy, they failed to highlight it in clear terms. Courts are looking carefully at large claims for damages in these cases and this might lead to more appropriate damages in the future.
Oracle has been ordered to pay a former employer $18 000 in damages. The court identified a ‘cruel and calculated’ pattern of conduct deserving of censure. Oracle was held vicariously liable for this conduct as Tucker settled into a systematic form of humiliation and sexually charged aggression as his normal mode of interacting with Richardson. Claims for indirect discrimination and damages for breach of contract were dismissed. The court found that Richardson had not established she was demoted, or that she would have suffered in her employment if she had remained with the company. Oracle was not responsible for any financial loss arising from Richardson’s change of employment.
A dramatic increase in the number of workplace bullying allegations has placed huge pressure on small businesses forced to defend frivolous claims. A by-product of increased reporting has been a surge in bogus claims levelled against employers. The media saturation of high-profile bullying cases has heightened awareness of workplace bullying, although not always understanding. Bullying has now started to become a bit of a catchall to categorise any sort of discontent. Rudeness, impoliteness, and challenging behaviours often attract the tag of bullying. It is important to remember that workplace bullying is defined as a pattern of negative behaviour directed at an employee that creates a risk to his or her health and safety.
A blind woman who was employed as a medical secretary was deliberately paid less than $9 an hour because of her disability, Fair Work alleges. Heba El-Ali was employed as a part time receptionist. Over two years she was underpaid a total of $20,847. Her flat rate of $8 was 40% below the entitled health professionals and support services award wage. She also worked more than one month at the practise as a trial without being paid. Three other female receptionists at the practise who completed the same tasks and similar hours were paid higher wages than Ms El-Ali. The case will be heard later in March in the Federal Magistrates Court in Sydney.
A Safe Work Australia report has found levels of bullying in Australian workplaces are substantially higher than international rates. The report included responses from 5,743 workers from six states and territories, excluding Queensland and Victoria. 6.8% of respondents agreed they experienced bullying in the second half of 2012, compared to international rates of about 1% to 4%. Safety Consultants Australia spokesperson said that a key issue was Australia’s rising work hours. More than 40% of participants worked more than the national standard of 38 hours and 18% worked longer than 48 hours a week. The AWB project found that nearly 42% of males reported being sworn or yelled at, more than 20% or workers were humiliated in front of others and almost 20% experienced discomfort due to sexual humour. 6.9% of women experienced unwanted sexual advances and 14.8% of women experienced unfair treatment due to gender. However employers are not to blame as increasingly more and more effort is put into developing support documents and guidelines.
A nurse-in-protest has been organised after a Sydney café banned a breastfeeding mother. Regan Matthews claims the manager of the cafe told her to stop breastfeeding her child, and that the practise was ‘disgusting’ and ‘an offence to humanity’. The Café manager has since sent a personal apology to Matthews. The Café has also said that breastfeeding mothers were welcome and that stickers will be on the door next week. However, all staff should know that laws protect breastfeeding women in public and the Federal Discrimination Act specifically states that people can’t discriminate against them.
Partners in law firms are particularly prone to bullying junior staff. 33% of voters in a poll believed that partners are prone to bullying junior staff and 29% of voters said bullying was a problem at all levels throughout the firm. Joydeep Hor, workplace relations lawyer said that the whole issue as to bullying and its perception had reached pandemic proportions in Australia. Less than one third of respondents said they’d never witnessed bullying at their firm, while 10% said management generally acted quickly to stop bullying when it occurred. One of the biggest problems is that people are making complaints about bullying too readily. Nine times out of ten the finding will be that there was no bullying, however there may have been inappropriate conduct.
The Senate report on the exposure of draft Anti-Discrimination legislation has made 12 recommendations:
• Altering the definition of gender identity
• Including intersex status as a protected attribute
• Including domestic violence as a protected attribute
• Including irrelevant criminal record as a protected attribute
• Modeling the definition of irrelevant criminal record on the definition in the Tasmanian Anti-Discrimination Act 1998
• Removing paragraph 19(2)(b), which makes conduct that offends or insults unlawful
• Specifically listing voluntary or unpaid work as an area of unpaid work
• Amending the definition of employment in clause 6 to remove paragraph (c) relating to voluntary or unpaid work, and including a new definition of voluntary or unpaid work
• Having regard to the legal differences between employees and volunteers when defining voluntary or unpaid work
• Developing amendments to Clause 23 of the draft Bill (which deals with exceptions for justifiable conduct)
• Removing exceptions allowing religious organisations to discriminate against individuals in the provision of services, where that discrimination would otherwise be unlawful (using the approach in the Tasmanian Anti-Discrimination Act 1998)
• Altering Clause 33 (which deals with exceptions for religious bodies and educational institutions) so that any organisation providing services to the public, and which intends to rely on the exceptions in that clause, is required to make its intentions publicly available.
There are long lasting and obvious benefits to having quotas for women on boards. Quotas are designed to rectify discrimination and a lack of pathways to leadership for women. There is an overrepresentation of women in middle management, and the gender pay-gap is still large and impacting female graduates. Women are the majority of university graduates. Using quotas in the workplace is an effective tool for breaking down elitist circles. However, some people see quotas as belittling and those candidates are tainted with the brush of whether they should really be there.
Workplace law expert Joydeep Hor says the boundaries between work life and private life are becoming increasingly blurred creating problems for employees both professionally and legally. She outlines several things employees should be careful discussing in the workplace. Talking about your sex life at work can get you in legal trouble. It does not need to be of a graphic sexual nature to be considered harassment. It is also important not to vilify certain groups in the workplace, as the expression of personal opinions can sometimes be dangerous. Gossiping about others in the office can also suggest that you are not productive. It is important to think about how to respond when a colleague criticises you, if you are constantly venting about others this will turn away other co-workers.
Recommendations on Human Rights and Anti-Discrimination Bill
18 – 24 February 2013
Workers at a Unanderra business claim they felt intimidated by a manager who superimposed his own face on a photo of serial killer Ivan Milat and directed it to be posted on the wall. The picture was posted above a palm scanner, installed recently after much controversy, to keep checks on employees of when they arrived and left work. The inference drawn was ‘scan or else’. The 39 production and maintenance employees were angry and reported the introduction of the machine and the poster to the union. They were told by the company that the poster was only meant as ‘dark humour and that the operations manager had apologised. Unhappy with this the employees went to the Fair Work Commission. The operations manager has now been moved of site after he drafted a written apology to all the employees affected.
Public servants have been paid workers compensation for dirty looks and a coffee-shop quarrel. Bullied bureaucrats receive an average of $251, 000 for mental stress claims. Comcare as paid more than a dozen public servants compensation in the past year. This makes up a third of Comcare’s payout costs. 44% of stress claims relate to harassment or bullying while 34% of claimants cite ‘work pressure’. The cost to taxpayers of insuring against injury, bullying and stress claims has soared by 50% in the past five years. The current ‘no fault’ scheme means injured workers do not have to prove negligence. Examples of compensation cases from the last year include a Tax Office data analyst compensated for psychological injury after fighting with a colleague over who should drink a cup of coffee. An Austrade auditor who won stress compensation after her manager told her that clients had trouble comprehending her poor English. A Centrelink staffer who confessed she could not deal with 70% of public inquiries was compensated for adjustment disorder, after she complained of client’s abuse and colleagues dirty looks.
New workplace bullying laws will sanitize the workplace and employers and workers alike will be petrified of having harassment suits slapped on them. New regulations are being drawn up to reduce widespread bullying in the Australian workplace. Guilty employers could find themselves facing $33,000 fines by the Fair Work Commission. The official parliamentary recommendation was that bullying should be defined as: ‘bullying, harassment or victimisation means, unreasonable behaviour directed towards a workers or group of workers that creates a risk to health and safety.’ The law in the UK and Australia says only that employers are responsible for the health, safety and welfare of employees – not their state of happiness. The new measures will not build workplace solidarity and instead could encourage vexatious litigants and will prevent employees and managers from speaking their minds at work for fear of causing offense.
The Federal Court of Australia has found that software company Oracle is liable for the sexual harassment of a former project manager by a sales representative in 2008. They have been ordered to pay $18,000 in damages. Ms Richardson sued Oracle for $450,000 over allegations of sexual harassment by Mr Tucker. They had been working together on a multi-million dollar contract with ANZ for an identity management and security project. The case focused on comments that Tucker allegedly made during their time working together. They started with a suggestion that they had been married in a previous life and progressed to harassing Richardson for not attending a party with him, not going on a date with him and how hot Richardson would be in bed. Richardson requested she be taken off the project but she did not give a reason for her request. Her request was declined. Later in November she told her manager about these incidents. She then made a formal complaint and the HR department told Tucker his behaviour was inappropriate and issued him with a first and final warning. The company later took Richardson off the account, which she viewed as a demotion whilst Tucker remained. Justice Robert Buchanan found that Tucker’s actions were persistent and ultimately callous and that Oracle did not take all the reasonable steps to prevent Tucker’s conduct. However, Richardson had left voluntarily and was awarded only 18,000 in damages.
An Australian employee of Oracle has won a sexual harassment case in the Federal Court, with the business now forced to pay an $18,000 fine. Ms Richardson was successful in winning her case and proved sexual harassment on 11 separate occasions in 2008 while she had been working on a joint project with Mr Tucker. Oracle was held vicariously liable for Tucker’s actions and must pay the fine. Justice Buchanan said she was satisfied Tucker did sexually harass Richardson. However, Richardson also claimed she would suffer future economic loss. The Court said this wasn’t the case. The court also made a point of emphasising the failure of Oracle to note the Australian harassment laws and the consequences. A report by the Human Rights Commission last year found 45% of women have been sexually harassed in the workplace in the past five years.
The fired principal of a Jewish school in Melbourne reached an out-of-court settlement on the eve of his unfair dismissal case in the Federal Court. Mr Gerassi, who is gay, sued Bialik College for millions of dollars in damages to his reputation and loss of income after he was abruptly dismissed. Believed to be the first openly gay principal of a Jewish school in Australia, there was no evidence that he had been fired because of his sexuality as he had alleged.
A Melbourne home wares shop has been forced to pay out a former worker and publish an apology after it unlawfully reduced her hours when she became pregnant. Here employer reduced her working hours once she discovered her employee was pregnant. Fair Work Ombudsman Nicholas Wilson said the owner-operator admitted to the breaches after workplace laws were explained.
A focus on early intervention through the Fair Work Commission has been announced in an effort to assist Australians being bullied at work. Bill Shorten has announced that the majority of 23 recommendations made by a parliamentary inquiry into bullying would be supported. The Fair Work Act would be amended to allow an employee who had suffered bullying at work a right to seek assistance through the Fair Work Commission. Safe Work Australia will also develop materials for employers to advise on preventing and responding to workplace bullying.
11 – 17 February 2013
The chairman of Rivers Australia is the subject of a second civil action for sexual harassment of an employee, Ms Adamopolous. Ms Adamopolous claims that Mr Goodman harassed her regularly by touching her buttocks on several occasions and making suggestive comments about her breasts. She also claims that in 1999 Mr Goodman instructed her to wear a black cat suit and appear as ‘Pussy-Galore’ in an advertising campaign. She refused to wear the suit and Mr Goodman repeatedly called her ‘Pussy’ after the incident. She claims that she suffered depression and post-traumatic stress as a result of the harassment and is pursuing Mr Goodman and Rivers Australia for damages. Mr Goodman has denied the allegations and said they will be vigorously defended in court.
Mr Goodman is also facing another sexual harassment case in the Federal Court, initiated in 2011 by a 31 year-old former executive, Ms Robinson. Ms Robinson withdrew her charge of indecent assault last year but is accusing Mr Goodman of making a string of unwelcome sexual advances towards her. Mr Goodman’s lawyers claim that Ms Robinson has a history of bipolar behaviour and alcohol abuse. The dispute is expected to proceed to trial later this year.
Workplace bullying victims will be given a new right of complaint as part of the Gillard Government’s rewrite of employment laws. The Fair Work Commission will get expanded powers of intervention in workplaces where bullying is alleged to have occurred. Victims will be able to take their complaints directly to the commission for investigation. It is believed that this will result in quicker resolution of complaints, as the Commission will be able to make orders against employers. There will also be a definitional change where bullying, harassment or victimisation means repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
The CSIRO has come under fire for labelling some allegations of bullying by former staff as ‘dodgy’. Ms Clarke has announced that the former commonwealth ombudsman would investigate bullying claims made by former employees. The deputy chief Mr Whelan questioned the veracity of some of the claims being made causing others to question why an inquiry was being conducted and if it would indeed be independent.
The Australian Government announced its response to the parliamentary inquiry into workplace bullying supporting the majority of recommendations made by the committee. The report contained 23 recommendations including a national definition for bullying and the Fair Work Commission to deal with complaints. The government also supports measures to promote education and awareness of what constitutes workplace bullying and to develop national training standards to improve responses to bullying complaints.
The small business community has been slugged with another proposed change to the Fair Work system. Businesses that make changes to rosters or working hours must ‘genuinely consult’ with the affected employees about how the changes would affect their personal lives. Changes will also include more flexible hours for more workers. Businesses are unhappy with the proposed changes and feel that small businesses should be exempt from these changes.
Changes to Fair Work will not resolve issues of bullying in the workplace. Giving employees access to the Fair Work Commission will just increase the workload for small businesses. 6.8% of the workforce have claimed to be bullied in a survey taken, this would suggest that Fair Work is going to be swamped by more bullying claims than even the unfair dismissal and adverse action claims which currently occupy its time. Fair Work is not the right forum for these complaints as it is not a court and cannot prosecute breaches or enforce is decisions. On health and safety matters state inspectorates and courts exercise that power.
Business groups warn that treating bullying, as an industrial issue will create more problems than it solves. Under these proposed changes workers who claim they are being bullied will be able to have the matter listed with the Fair Work Commission within 14 days of making a complaint. A spokesperson for the Australian Greens said that workers needed an independent umpire in an empowered FWC. But the Australian Industry Group said there was a lot of misunderstanding and it was a problem that fell within work health and safety laws. They believe it will just create more confusion and red tape.
Work banter and close working relationships are an important part of successful workplace. On a day like Valentine’s Day it is important to remember that stepping over the line can constitute sexual harassment or discrimination. Harassment occurs when one person make an unwelcome sexual advance or engages in unwelcome conduct of a sexual nature where a reasonable person would have anticipated the possibility that the object of the approach would be offended or humiliated. Sexual harassment will usually fall upon the financial shoulders of the employer. Although in the recent case of Menere v Poolrite Equipment Pty Ltd [2012] QCAT 252 an employer was found not to be liable for the sexual harassment undertaken by one of its staff. The employer had undertaken all reasonable steps to educate its staff and had done more than merely have a policy in place. However, this case is a rare exception.
A Melbourne retailer as apologised for breaching anti-discrimination laws after it requested a female employee significantly reduce her hours or resign after falling pregnant. Good Housekeeping Australia will pay the woman $2 000 compensation. In 2011 the employee told her employer that she was pregnant. She was later told her hours would by cut to seven per week from between 23-27 hours and if this wasn’t suitable she would have to resign. She consequently resigned in a constructive dismissal. The compensation payment of $2000 is low compared to what the company could have had to pay if the case went to court as a general protection claim. The company will also develop processes for ensuring future compliance with workplace laws, commission annual professional workplace relations training for all directors and prominently display a public notice detailing its breaches of workplace laws at its premises.
The Federal Government has proposed including the right for victims of domestic violence to be able to request flexible work arrangements in the Fair Work Act. This will require that employers, managers and human resources staff be informed of how domestic violence can affect work and how to respond appropriately. A 2011 survey of Australian workers found 30% of respondents had experienced domestic violence. Research shows that supporting an employee who is suffering from abuse is still cheaper than the costs associated with needing to rehire and retrain new staff.
Two female teachers from the Islamic School of South Australia have gone to court to fight against being unfairly dismissed, in part, on their attire being considered inappropriate. The school issued a warning to all female teachers to wear a hijab headscarf or face the sack. One of the teachers has taken a case of unfair dismissal to the civil court while Fair Work is hearing the other’s claim. The school’s policy insists non-Muslim women wear a headscarf, not a traditional hijab. The principal of the school said that male teachers who breach staff dress codes would face the same three-strikes warning system as female teachers who did not adhere to the headscarf policy.
4 – 10 February 2013
Smart Company:
Women still missing out on top jobs
Businesses must develop strategies to help women in middle management ranks move to the top of a company’s leadership. New research shows that workplace equality levels have not improved. There are only seven female chief executives out of the ASX top 200 companies. Despite the division 70% of women aimed to be in a senior business position, but a third of respondents believed this wouldn’t happen in their current workplace. 88% of all men and women said they valued gender parity in the workplace. In large corporations men were nine times as likely to be in an executive role compared to women. The report found 52% of men thought women had equal opportunities to be promoted in the workplace to senior roles compared with only 15% of women.
Smart Company:
Australian SMEs lead in online workers
More Australian firms are hiring people online. Businesses value the flexibility and greater talent pool from online hiring. The survey found that 93% of the respondents said they would spend the same amount of money on online workers. Australians are now spending 3.3 millions hours working online. 92% of businesses said they were motivated to hire online workers because of cost savings.
Smart Company:
Compensation ruling after workplace Facebook argument
Businesses have been warned to ensure their employees know social media sites can serve as an extension of the workplace. This follows a Fair Work Commission case involving an employee who made offensive remarks against a colleague on Facebook. In this case Gloria Bowden was involved in an argument on Facebook with another employee who accused her of intimidation. The conversation was sparked due to an ongoing investigation conducted by the chief executive into the company’s supposed low morale. An employee named Crocker then filed a complaint against some of Bowden’s friends and then posted the words “f-ck you all,” but removed it shortly after believing she had gone too far. After this Bowden sent his employee a document entitled workplace politics, which intimidated the employee. It was the sending of this document that partly resulted in Bowden being dismissed. The FWC granted Bowden $7500 in compensation. Employers should be wary that is becoming unacceptable to communicate via social media about a workplace issue.
The Australian:
Mr Ashby will have to wait until May to continue his appeal against the decision to throw his sexual harassment case against Mr Slipper out of court. Mr Ashby’s lawyer wishes to appeal on the basis of the scathing findings made against him by Justice Rares.
Sydney Morning Herald:
The CSIRO has announced an independent inquiry into a string of serious allegations of misconduct and workplace bullying. This review mechanism is designed to provide an independent and formal means for former employees to raise concerns and allegations of inappropriate behavior and misconduct whilst they were employed at CSIRO. But it also said the inquiry was not a mechanism by which former employees could seek compensation.
Canberra Times:
A recent case of an Australian workplace bullying was when five men grabbed a 16 year old factory worker and wrapped him in cling wrap from neck to feet, shoved him into a trolley, and then pushed the trolley to the edge of a four meter hole. They then gagged the boy, smeared sawdust and glue on him and turned a fire hose on him. Sometime later the foreman cut him loose, nothing happened to the bullies. This culture of initiation and a ‘bit of fun’ is bullying. The boy received compensation for his injuries. Some examples of workplace bullying are subtler. Bullying often leaves victims with a feeling of intense fear, helplessness or horror of the workplace. Victims are often unwilling to seek help, as they are afraid that they will be seen as a weak person who is unable to cope.
PS News:
A new report from the Australian Human Rights Commission into unpaid caring has been released. 5.5 million women and men between the ages of 15 and 64 undertook unpaid care in Australia. However, the superannuation and taxation systems fail to recognize this contribution and provide a value for this unpaid work. The report was intended as a discussion paper that would kick start consideration of potential policy reforms. It suggests 11 options for policy reform. Women undertake the majority of caring in communities and the current superannuation, taxation and employment systems severely disadvantaged them.
Smart Company:
Dealing with mental illness in the workplace
Six out of ten Australian workers feel their privacy has been eroded by the widespread usage of social media in the workplace. Australian adults are finding themselves to be the subject of gossip, distasteful photos and unwanted advances through social media. One out of ten workers said they have had embarrassing photos or videos taken at a work event and uploaded on to social media sites. 7% of people said they had experienced unwanted romantic advances over social media. The separation of work and private life is no longer possible. Nine out of ten Australian adults believed sending unpleasant or defamatory remarks to or about a colleague constituted cyber bullying.
ABC News:
Blind people await judgement on train discrimination
The federal Magistrates Court has ordered Railcorp to pay Australia’s Disability Discrimination Commissioner $10 000 for failing to provide regular and audible announcements on trains. Commissioner Graeme Innes is blind and took Railcorp to court in a personal capacity alleging the company’s failure to provide appropriate announcements was in breach of federal disability discrimination laws. The court agreed that Mr. Innes had been disadvantaged and ruled in his favor.