February 2014

24 February – 02 March 2014

Smart Company

A $500,000 age discrimination claim brought by a former waiter against Guy Grossi will go to mediation this week. Mr Tedesco filed an age discrimination claim after he left Grossi’s restaurant. Grossi claims that Tedesco quit, but the employee of 15 years says he was forced out of his role so someone young and strong could front the restaurant. Tedesco had attracted warnings and complaints over various alleged incidents, including a wine theft and a suspected failure to pool tips with other staff. If mediation fails, there will be a hearing in June.

Radio Australia

After the death of Charlotte Dawson there has been increased focus on the increasing incidence of cyber bullying via social media websites. Dawson had been a prominent campaigner against cyber bullying. She had been hospitalised in 2012 after a suicide attempt, when she received a torrent of online abuse on Twitter. A Federal Government scheme that handles complaints about hateful material on social media sites persuaded Facebook, Google, Microsoft and Yahoo to sign up to its guidelines last year.

ABC

Victoria Police has denied its’ members told a former Ballarat Sergeant it was waiting for him to die so bullying allegations would dissipate. Mr Irving was planning to sue Victoria Police over claims he was involved in workplace bullying between 2009 and 2012. He died from terminal cancer last weekend. His wife says that they were told that once he died his claims of bullying would dissipate. Victoria Police says the allegations are incorrect.

News.com

The AHRC has found huge workplace discrimination against pregnant women. The Commission will report on its findings in June and is still calling for submissions. Some of the cases submitted for review include a woman who was refused light duties when pregnant and subsequently miscarried and was then harassed by her boss over work issues when she was at home recovering the next day. Another woman was forced to express milk in public places or in shared toilets. Others were subjected to criticism about their bodies or frequent toilet breaks and told that pregnancy or even attempts to get pregnant ruled them out of contention for their jobs. The YWCA told the commission that discrimination was ‘alive and well’ and that the lack of support was a large factor in women not rising to the top. The SA Office of the Commission for Equal Opportunity told the review that pregnant women were often reluctant to complain because of fear of victimisation and the difficulty of proving the link between pregnancy and discrimination. Elizabeth Broderick said she found it surprising that much of the discrimination came from women and that men were also discriminated against when they sought paternal leave.

The Australian

Scrapping gender reporting laws will relieve businesses of unnecessary red tape without harming the ability of women to rise to the top of their profession. Since 2012 the federal government has obligated employers of 100 people or more to report on gender-related matters.

Women’s Agenda

As part of the Abbott government’s mission to slash $1 billion of red tape, reporting requirements for gender equality in the workplace could be relaxed for small businesses. Under the new system only companies with over 1000 staff members would need to provide detailed annual reports on gender balance. Under the Workplace Gender Equality Act 2012 businesses with over 100 staff were required to report. Reports covered the ratio of men to women hired, their positions within the company and their remuneration. The news of reform comes as figures released last week from the ABS show that on average, full time working women earn 17.1% less per week than full time working men’s earnings. This is slightly down on the figure from August 2013, 17.5%

Lawyers Weekly

A Hicksons’ lawyer has launched a claim against the firm alleging bullying, intimidation and sexual harassment by a senior equity partner. Ms Asimus has taken action against Mr Leaver, the head of the firm’s insurance team and Public Sector Risks practice. Ms Asimus’ claim details a litany of alleged grievances against Mr Leaver, the firm and its HR department. In addition to the alleged sexual harassment Asimus alleges she was on the receiving end of aggressive verbal outbursts that left her feeling intimidated, shocked and fearful. Although Ms Asimus was successful she received very little administrative support and was regularly working in excess of 100 hours per week, including weekends.

Lexology

In Australia there are several common misconceptions about sexual harassment.
1. A workplace isn’t just an office – a workplace can include any place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
2. Statements made in the presence of a third person can still constitute harassment of that third person
3. A harasser might not know something is unwelcome – the victim does not need to communicate that the conduct was unwelcome
4. The reasonable person who anticipate if the victim would be offended, humiliated or intimidated is not necessarily the harasser or another worker at that workplace – the perceptions of the harasser are irrelevant

CCH

The Full Bench of the FWC will soon decide whether the anti-bullying laws will apply to conduct which occurred prior to 2014. In a recent case the Ai Group has claimed the new anti-bullying laws only apply to behaviour occurring on or after 1 January 2014, basing its argument on the long standing principle that a law does not apply to conduct prior to its operation. However, the ACTU says that simply by including behaviour from before 2014 does not make the law retrospective. Instead it was introduced to stop bullying, and it would be nonsensical if people had to endure further abuse this year to qualify under the legislation.

Courier Mail

The merit principle is failing to help women achieve gender equality, and may be making the problem worse. Treasurer Martin Parkinson said men were using the merit principle to hide their bias. He referred to research done in the US that shows that organisations that philosophically are attached to the merit principle do worse on gender diversity. In order to counter the same problems in the Treasury a target for 35% female representation in senior leadership has been set for 2016.

Canberra Times

ACT government departments are struggling to meet a deadline next year for ensuring at least 2% of staff are indigenous Australians. A recent report has found that less than 1% of the staff in some government directorates are indigenous people. The figures follow an inquiry late last year in which Aboriginal and Torres Strait Islander public servants spoke of racist taunts and bullying in their workplaces.

The Australian

James Ashby said he was determined to pursue his sexual harassment claim against former speaker, Peter Slipper, after an appeal court ruled in his favour. The Federal Court overturned a previous judgment that found the allegations were brought by Mr Ashby as a ‘political attack’ against the former speaker. Whilst the ruling was made in favour of Ashby, his lawyer Michael Harmer lost his own appeal against the initial judgment, which made damaging findings against him.

17 – 23 February 2014

ABC

A proposal to have a minute of silent reflection instead of reciting a Christian prayer in Federal parliament is being introduced in the Senate. This will allow senators to reflect on their responsibilities or pray in silence, rather than reciting the Lord’s Prayer. It is argued that this would better reflect a multi-faith modern Australia. The proposal has sparked a passionate response from people. As workplaces are no longer allowed to express a particular faith or practice it makes sense that the Parliament also reflects this in modern multicultural Australia. This has not stopped many Australian’s from attacking the proposal as discriminatory.

The Age

An Internet search of university student bullying reveals that local and international students are blogging about their experiences of being bullied by students and staff. However, there is very little scholarly research on the bullying of university students. In recent years there has been significant focus on bullying in high schools and workplaces, but very little focus on university years. A Finnish study has concluded that 5% of students studying their first degree had experienced bullying. The study also found that it was difficult to define bullying.

BRW

Valentine’s Day is not the time to surprise a colleague with a declaration of romantic interest. It is a recipe for disaster. It is possible that you may be slapped with a sexual harassment claim because of clumsy, awkward and inappropriate approaches. However, familiarity with that person can help protect you. A NSW discrimination tribunal threw out a case against a “Romeo” after he asked out a colleague. This was because they had spent considerable time having coffee and going out to lunches and work functions together and the tribunal concluded that it was not unreasonable that romance would be the next step. If you want to ask someone in your workplace out it may help to follow these steps:
• Get to know the person first
• Read the signals – make sure you don’t confuse politeness with attraction
• Don’t be anonymous – this may come across as stalking
• Don’t make it public
• Think of their professional image
• Be aware of power differentials
• If they have told you they are not interested – don’t do it!

The Age

A construction company in Melbourne, Caterpillar, has been accused of forcing casual staff to sign letters stating they do not want permanent jobs, just weeks before the company would be forced to hire them permanently. The company is being taken to the national workplace umpire over these accusations. The casual workers are all employed via labour hire firms and those who refuse to a sign a letter were let go. This will act as a test case for Australia’s new bullying laws as a joint order was made to the FWC to stop the alleged bullying at the warehouse.

CSR

A report by the University of NSW has found that the majority of Australian women experiencing domestic and family violence are in paid employment, and that paid employment plays an important role in promoting women’s independence and wellbeing upon escape from violent relationships. However, job performance can often be effected because of this abuse, as a result these women tend to have more disrupted work records, high absenteeism and decreased productivity. There are arguments that say it makes economic sense for employers to support an employee suffering domestic violence. The report highlights that providing time off to victims costs less than replacing staff. The National Australia Bank is an example of a company that has developed a company-wide domestic violence policy.

BRW

Australian businesses are focusing on gender balance at the expense of promoting cultural diversity, despite 9 out of 10 employers believing racist attitudes persist in the workplace. Research has found that almost 30% of Australian businesses ranked gender diversity as the most importance issue to address, while only 13% identified cultural diversity as a key priority. Recently gender diversity has gained prominence because of compulsory reporting on equality of opportunity for women. Statistical analysis has thrown a real spotlight on the gender gap and most businesses pay attention to numbers. The whole concept of starting to measure cultural diversity is quite new and challenging. Of the businesses surveyed 70% said they had cultural diversity initiatives in the workplace and another 60% said they were staring new initiatives in 2014.

CCH

In the recent case of Australian and International Pilots Association v Qantas Airways the extent of information an employer can request where an employee is medically unfit for work was considered. It was claimed in the case that Qantas had taken adverse action by threatening to take disciplinary action against their employee, because Mr Kiernan has exercised his workplace right to provide a medical certificate as evidence he was unfit for duty. After Qantas received the medical certificate they then asked for a written report from the treating doctor as to the diagnosis and prognosis of the employee. Justice Rares held that as long as Qantas was not challenging Mr Kiernan’s right to take sick leave, but merely requiring him to do what was reasonable so that it could operate its business, it has an implied right to do so under the employment contract.

CCH

The Republic of Lebanon has been ordered to pay over $500,000 to a former employee who was sexually harassed, discriminated against and dismissed. The court also ordered the payment of penalties of $23,950 for breaches of employment legislation. Mr K was employed at the Sydney Consulate and claimed that she was dismissed in contravention of the Fair Work Act and that the consulate took adverse action against her in the form of harassment, bullying and intimidation. The court held that a foreign state had no immunity with regard to an employment contract made in Australia for work to be performed in Australia. The court found that Mr N had harassed and bullied Ms K after she had rejected his sexual advances following her marriage to Mr M. Ms K was also awarded general damages of $50,000 for the psychological effects that the respondent’s conduct had on her.

Courier Mail

A rowing coach sacked for using colloquial language during a sex talk to students will sue Brisbane Boys’ College for breach of contract and wrongful dismissal. Mr Bellamy only spoke to rowers about sexual misconduct after being ordered to do so by superiors. Mr Belamy was suspended and later dismissed after telling rowers not to “twirl their wangas”.

Yahoo Finance

Northern Territory Ambulance staff have started industrial action to end what they call a culture of bullying within the Saint John Ambulance service. United Voice has received dozens of letters from union members with allegations of incompetence by management. Racist and sexist comments and jokes are commonplace; verbal abuse is common, physical intimidation as well as assaults, which occur from time to time, are covered up. NT’s Minister for Public Employment said staff were raising these issues because they wanted higher wages.

Leading company

Racism is still prevalent in Australian workplaces with over 90% of respondents reporting racist attitudes in businesses. But despite the high percentage gender diversity, work/life initiatives and indigenous employment were seen to be of greater importance to Australian businesses. The study also found that one in three Australian businesses didn’t feel that cultural diversity was valued in their workforce.

10 – 16 February 2014

News.com

A former high school principal who had sex in his office and kept “inappropriate images” on his work computer has gone to court to unmask the whistle-blowers. The principal wants access to all emails, documents and records of phone conversations relating to the case. An internal investigation was triggered after a series of allegations made against the principal were received. While some of the allegations were found to be unsubstantiated it was satisfied that the principal had used his office to have sexual intercourse on more than one occasion. A tribunal has also heard that female staff received inappropriate emails and texts from the principal. There was no suggestion that the principal acted inappropriately with students.

Australian Financial Review

Women have always known that you don’t just have to have children to be discriminated against at work, all you need is the perception that you might bear children. Last week Elizabeth Broderick said she had hundreds of complaints from women who had been discriminated against on the basis that they may or may not have children. This is of course discriminatory and can land an employer in a lot of trouble with the Australian Human Rights Commission. Last year was the first time that there were more complaints about pregnancy related discrimination than complaints for mental or physical disability.

News.com

Teachers with same sex partners would be encouraged to bring them to school social events to help tackle homophobia in WA schools. Students will also be warned not to use terms like “that’s so gay”. The WA Equal Opportunity Commission and Education Department have shaped a draft of the guidelines for supporting sexual and gender diversity in schools. The document says that bullying and harassment made many students afraid to come out about their sexual orientation. This comes after a study revealed that two-thirds of non-heterosexual young people had been bullied because of their sexuality.

Smart Company

Coles has lost an unfair dismissal case after it sacked an employee who took work-provided Milo home to create his own formula for consumption at work. Employers are now being warned to ensure employee punishments fit the crime. Coles had provided Milo to employees to drink during their breaks, Mr Homes frequently took it home to make his own Milo before bringing it back to work to drink. On one occasion Mr Homes was searched by a security guard who discovered the Milo. He was then dismissed. The FWC found that Mr Homes had been unfairly dismissed and ordered that he be reinstated and awarded him his lost remuneration for the full period of dismissal.

Stuff.co.nz

More than one in 10 female soldiers in the NZ Defence Force say they have been harassed. The Ministry of Defence released a report that showed while substantial progress has been made in the past 15 years, gender inequality is still widespread. Women had high rates of attrition and low rates of career progression. Women in all services also report higher rates of bullying than men. Bullying was higher among new recruits. Women make up only 15% of the NZDF. This is still a higher proportion of female soldiers than in the US, UK and Australia.

Mondaq

A store manager was caught grabbing a female employee on security camera. This illustrates either that the supervisor figured that his subordinate was too afraid to complain about sexual harassment, or just plain stupidity. As the store manager, he was aware of the location of store closed-circuit television cameras. The manager allegedly asked the employee harassing questions such as ‘been keeping your husband up late?’ as well as leering at her bottom before the assault. He then managed to get himself filmed as he came from behind and dragged her into his office where he allegedly sexually assaulted her. The woman is suing for $1.3 million claiming she has been diagnosed as having post-traumatic stress disorder and had even attempted suicide. The company and the manager deny the allegations. The manager has since been promoted.

WA Today

Trolling is a particular type of bullying where the victim is often random and the motives unfathomable. The vast majority of the targets for obscene violent abuse are female. Teenage girls are three times more likely to be targeted than teenage boys. Three out of four who report being harassed and stalked online are women. Suggestions for employers include tightening and clarifying Twitter protocols so staff know that sending anonymous, obscene, threatening or violent messages will result in strong disciplining or even dismissal.

CCH

The goal to halve the employment gap between Indigenous and other Australians within a decade is unlikely to be reached. A new report has shown that there had been a small widening in the gap between Indigenous and non-indigenous employment rates. Remoteness is an important factor in the rates of indigenous employment.

CCH

A survey by the Public Service Association of NSW has found that pregnant women and mothers are reporting high levels of discrimination in the NSW public service. The survey found 77% of respondents said they had missed out on an opportunity for promotion while pregnant and 79% said they had been subject to inappropriate comments by supervisors while pregnant. The main challenge women were facing was a lack of flexible working arrangements.

3 – 9 February 2014

Smart Company

In the first month of its new jurisdiction the FWC has received 44 bullying complaints. It is expected that the number will increase as awareness and understanding grow. The FWC says each application is assessed at an early stage to determine whether or not it falls into its jurisdiction. This will hopefully prevent the Commission from being flooded with false claims.

Law Fuel

A recent Australian survey undertaken by the Law Council of Australia found that half of all women and one third of male lawyers have been bullied or intimidated in the workplace. The survey showed an alarming number of current and former legal practitioners felt they had been bullied. The study found that the high perception of bullying and intimidation could be linked to the confrontational nature of legal practice. 50% of women reported experiencing discrimination due to their gender compared to just over 10% of men. A quarter of these respondents said they were discriminated against due to family or carer responsibilities. Large law firms had the highest rates of discrimination and sexual harassment and were also identified as having a male dominated culture.

Australian Financial Review

The 44 bullying claims made to the FWC in January is a figure lower than anticipated. During debate over the changes to anti-bullying laws, employer groups raised concerns about a rush of complaints, some of which would be vexatious. Only 6 of the 44 applications in January were withdrawn in the preliminary assessment phase. The Commission has heard several matters but no orders have been made as yet.

Gay Star News

2 out of 3 LGBTI Australian young people still experience bullying in 2014. The Growing Up Queer report found that a disturbing 16% of young Australians aged 18-27 had tried to commit suicide while 33% had self harmed. 42% had thought about self-harm or suicide. 64% reported being verbally abused because of their sexuality while 18% had experienced physical violence. The experiences of homophobic and transphobic harassment and violence spanned across all areas of life from the workplace, to families and public sites.

Smart Company

Superannuation industry experts are calling on the federal government and super funds to close the gap between men and women’s retirement savings. The main causes of the gap in super balances were identified as the gender pay gap and the level of workforce experience. Many women choose to take career breaks to have a family or care for elderly parents and this has an impact on their ability to accrue super and earn a higher wage. Research shows that 70% of retired women over the age of 45 rely on the government pension as their main source of current personal income.

ABC Online

Discrimination against people with a disability is widespread in Australia’s justice system. A report soon to be released by the Human Rights Commission will recommend that each State urgently develop a strategy to ensure people with a disability are treated fairly before the courts. One case in the report is of Ms Avery who has a severe intellectual disability. Over a period of 4 years she received multiple minor convictions for petty theft after repeatedly stealing colourful calendars and greeting cards. She received so many convictions she was at risk of being sent to jail. She was eventually found permanently unfit to plead as a result of her intellectual disability. The strategies to address this inequality would need to cover the availability of supports, the availability of better communication facilities, training for police and corrections officers more awareness of disabilities in the court system and further education on how people with disability are perceived.

Women’s Agenda

Breastfeeding is sanctioned federally by the Sex Discrimination Act and specifically addresses discrimination against the act of breastfeeding. But despite these legislated sanctions many Australians are ambivalent about breastfeeding in public. In 2012 one in four people believed breastfeeding in public was unacceptable. Clearly laws protecting the right to breastfeed are not enough and what we need is cultural change.

The Australian

Another advisor to Peter Slipper is attempting to sue the former Liberal MP and Commonwealth government for discrimination on the basis of sex, race and disability. Ms Doane was a central figure in the long running sexual harassment case between the former speaker and his staffer James Ashby. She is seeking compensation and a declaration under the Human Rights Commission Act that she suffered discrimination.

CCH

An employer has taken adverse action against an employee suffering long-term depression with alcohol problems when it stood him down and then dismissed him. Mr Grant had committed acts of misconduct arising from his health difficulties. The State of Victoria, his employer, was made aware of the employee’s illness but denied this played a part in the reason to dismiss him. The employee worked as a solicitor from 2007 and had satisfactory work performance until 2011. However, in 2010 he hurt his leg and developed a DVT and his performance at work began to deteriorate. Eventually Mr Grant was stood down.

The judge did not accept the assertion that the employment was terminated because of misconduct. The employer was aware of the health difficulties. The adverse action was that the employee was stood down, investigated and dismissed because of his illness or his misconduct caused by his illness. The employer was unable to discharge the reverse onus of proof.

28 – 02 February 2014

The West Australian

Australia’s Race Discrimination Commissioner has rung the warning bell on cyber racism, saying that social networking sites are being increasingly used to air racist sentiments. The Commissioner expressed concern about the marked increase in cyber-racism complaints. Complaints to the AHRC have risen by 59% since 2012-13 and this is fuelled in part by a surge in cyber-racism complaints.

Mondaq

A recent FWC decision has upheld the enforcement of a social media policy out of work hours. Mr Pearson had been an employee at Linfox since 2007. From 2012 Mr Pearson was issued with a series of warnings for several breaches of Linfox’s workplace policies and refusing to sign an acknowledgement that he had read and understood the social media policy. In 2013 Mr Pearson’s employment was terminated and he commenced proceedings for unfair dismissal.

Mr Pearson argued that he refused to sign the social media policy as it applied outside of working hours and this was unreasonable as it impacted on his right to freedom of speech. However, Commissioner Gregory declined to address whether Mr Pearson’s rights were impacted and delivered a resounding endorsement of the social media policy. The Commission found that the nature of social media is such that it can be accessed any time and even when it is accessed outside of work hours it can still have a detrimental impact on the employer’s interests. Commissioner Gregory found that Linfox had acted neither unreasonably nor unlawfully in requiring Mr Pearson to sign the social media policy acknowledgement.

The Telegraph

Discrimination against pregnant women in the workforce is at an alarming level. Elizabeth Broderick has said that women are still being quizzed when applying for jobs about whether they have children, or are planning on having children. One submission from Broderick’s Review into Pregnancy in the workplace reveals how one woman was forced by her employer to log each trip to the bathroom to vomit during pregnancy in 10-minute blocks of personal leave. However, Australia may be on the brink of a radical new scheme that will help end some of the discrimination faced by working mothers – the Abbott government’s new parental leave scheme. The chief benefit of the new scheme is it will remove the financial incentive for individual businesses to discriminate against women of childbearing age.

Australian Mining

Australia’s mining sector is calling on the government to change anti-discrimination laws so they can advertise jobs as Indigenous only. The AMMA said the appeal is being driven by a concerning increase in the Indigenous employee gap. Andrew Forrest who believes that to improve Indigenous participation anti-discrimination laws need to be altered is heading the submission. The AMMA is launching a new training initiative aimed at Indigenous jobseekers in the hope practical, job-generating projects will help ensure Indigenous job growth keeps up with population increase.

Smart Company

In a recent FWC decision the Commission held that Choice Homes could not dismiss an employee for calling the CEO a ‘wanker’. Mr Cronin was dismissed after he sent around an email where he indirectly called the chief executive Mr Knight a ‘wanker’. Mr Cronin forwarded to all staff a mock resume for Mr Knight, which listed ‘excessive masturbation’ under the CEO’s hobbies and interests. The FWC agreed with Mr Cronin that given the workplace culture at the firm the email was not enough to warrant a dismissal. Although Mr Knight also argued that the email constituted sexual harassment, the FWC was not swayed. Instead the FWC found that the email system was regularly used to send hard-core pornography as well as sexist and racist material. Senior management were also involved in the dissemination of this material and because of this, even though the email was ‘ill-considered and potentially offensive to Mr Knight’ it did not make a valid reason for Mr Cronin’s dismissal. Mr Cronin did not ask to be reinstated and was instead awarded compensation of $62 000.

Mail & Guardian

A young woman in China has become the first to win a gender bias lawsuit in China. She was awarded a settlement of R55 000 in a Chinese court for workplace gender discrimination. She launched the suit after recruiters said they couldn’t hire her because they needed a man. More than 90% of female students surveyed have said that they believed they had experienced gender discrimination by employers. Although she was successful in winning her case she was still not offered a job.

Smart Company

A former manager at Woolworths is suing for alleged sexual harassment by her former boss, which has resulted in her developing a mental illness. Ms Wilkie alleges the manager Mr Clark sexually harassed her by making lewd comments and eventually dragging her into his office where he stroked and gripped her arm. Ms Wilkie says she now suffers from posttraumatic stress disorder, anxiety and has attempted suicide. She first lodged a complaint with the AHRC but the parties were unable to come to an agreement during mediation. Woolworths is also under scrutiny for the poor handling of the complaint.