January 2014

20 – 26 January 2014

Mining Australia

A miner has lost his claim for unfair dismissal after he was fired for lying about his drug use. Anglo American dismissed Mr Vaughan in April 2013 after he tested positive for methamphetamine. The FWC sided with Anglo American saying the employee was dismissed as a result of “his lack of openness”. Mr Vaughan filed his claim because the company did not normally dismiss employees for their first fail. However, prior to the screening he completed a form denying that he had taken any drugs in the weeks leading up to the test. It was not until further testing was undertaken that he admitted to taking an “unknown substance” at a party. It was Mr Vaughan’s dishonesty that lead to the dismissal rather than his positive results to the drug test.

Pro Bono Australia

Lawyers for 10 000 intellectually disabled workers in Australia have sought a court order over the Federal Government’s latest payment scheme. Maurice Blackburn Lawyers said it lodged an application to prevent the Federal Government from “misleading intellectually disabled employees into signing away their legal rights”. Maurice Blackburn have condemned this as an attack on some of the most vulnerable people in the community, the disabled working poor. The Government is encouraging workers to waive their legal entitlements by claiming that a one-off payment will be made more quickly than through any legal process. This follows a decision that employees have been subjected to years of unlawful underpayment in breach of the Disability Discrimination Act. The Business Services Wage Assessment Tool has caused thousands of intellectually disabled workers to be underpaid, and many of them were paid as little as a dollar per hour.

Sydney Morning Herald

The resignation of an ATO employee underscores the need for federal public servants to be careful how they use their social networking sites. The Public Service Commission has issued guidelines to bureaucrats about their online activities. Mr Adams Tweeted that Ms Tankard-Reist was “rootable in that religious feminist way” prompting the campaigner to make a formal complaint. The public servant was sanctioned over the Tweet in 2012 but the issue came to life again when Ms Tankard-Reist made a complaint about the handling of her original grievance. Mr Adams was found to have committed three breaches of the Public Service Code of Conduct and he resigned.

TechDay

Men in New Zealand and Australia have highlighted the influence of social media on relationships and how the combination of mobility in the workplace makes it harder to separate work and play. 66% of male respondents spend more than an hour connected to the Internet as they communicate with friends, work, browse and play games while 26% reported email as the main reason for using their phone and a further 23% nominated texting and calling friends. 68% of employed respondents used a mobile device in the workplace and 62% said this made it harder to keep home and work separate.

The Guardian

Internet companies have criticised a plan to create a powerful e-safety commissioner with unprecedented authority to regulate social media. The new regime can force social media services to rapidly remove harmful content. In a consultation paper the government conceded that the proposal had the potential to affect freedom of expression. This would replace the voluntary regime for handling digital content complaints in Australia. Under the new regime, if a complaint was deemed valid the social media service would have to have the content removed. If this was not done the Commissioner would have the power to name and shame the company. Google, Twitter, Microsoft and Facebook all opposed the proposal.

The Australian

Ita Buttrose has urged Australians to respect older people and to fight against age discrimination. She argues that mature age workers should be encouraged to stay in the workforce rather than precluding them.

Sydney Morning Herald

A campaign by unions to end urine testing of employees to detect drug and alcohol use has had another win in FWC. It declared that workers at a state owned Energy Company were to be tested using saliva swabs. This type of testing is becoming increasingly common, but employers and unions disagree on what is the most appropriate testing method. The FWC ruled that urine testing was “unjust and unreasonable” because it detected drug use from days earlier, while oral fluid testing generally picked up drug taking in preceding hours. It was held that testing should be about identifying potential impairment at work rather than disciplining staff for private actions taken in their own time.

Smart Company

Clifford Chance, an Australian law firm, is considering a “CV blind” approach to hiring to ensure educational diversity in the graduates it accepts. The approach is designed to strip CVs of school and university details in order to help reduce bias towards hiring on where the candidate studied. A risk employers have is “like” hiring, which is looking for candidates that have familiar traits and backgrounds to their own experiences.

Smart Company

The government’s new paid parental leave scheme could override existing parental leave contracts employers have with their staff. However for some small businesses the cost of paying maternity cover is significant. The PPL scheme is said to be fair, it lasts for six months, enough time for a mother to recover and care for the child. The new PPL will offer women expecting a child 26 weeks leave off work, paid at their full wage, but capped at the maximum payment of $75 000.

The Australian

Gemma Munro a leadership consultant said that women have to let go of the need to be liked as it stifles their careers and stands in the way of their goals. Women are slowly being recognised for their leadership qualities. In a Harvard Business Review in 2012, it was found that in 16 leadership competencies women outperformed men in all but one. Munro is also an advocate of quotas, she said businesses need to set targets for at least 30% women in management. She is also critical of the gender pay gap saying that it is a result of businesses knowing that they can get away with it.

13 – 19 January 2014

Bayou Buzz

In the US a mother has filed a lactation discrimination lawsuit against her employer. When she returned to work she planned to pump breast milk during breaks so she could continue nursing her infant daughter. But her supervisors first told her to pump in a bathroom, after she complained her employer offered further alternatives that still failed to meet federal requirements. She also says she was harassed by colleagues who pranked her and banged on the door while she pumped. She said the treatment was defeating and exhausting.

Sydney Morning Herald

Former staff of Contact Centres Australia allege there is a culture of bullying, intimidation and harassment at the centre and claim they were underpaid. It is also claimed that workers are under constant surveillance during their shifts with conversations between workers recorded. Ms Batorowicz was dismissed from the workplace after a conversation she had with a co-worker about a music festival during which they mentioned illicit substances. The National Union of Workers says they have serious concerns about the legal and moral implications of this type of surveillance. The union has made an application to the Fair Work Commission. Another worker Mr Kazmi, says workers are berated in front of colleagues and pulled into rooms to be confronted aggressively by managers.

Bendigo Advertiser

Employers in regional areas will feel pressure to address workplace bullying under the new laws that came into effect on January 1. Those in small country town workplaces may be forced to deal with complaints before they go to the Commission. In small towns everyone knows everyone else, so if an employer is reported for bullying and it goes to a hearing the information becomes public. A small number of complaints were made on January 1 when the laws first came into effect.

News.com

A deaf woman, who has lost a discrimination case against the State Government over being excluded from jury service, has lodged an appeal. Ms Prudence raised questions about the eligibility of disabled people for Queensland jury service. Ms Lyon’s lawyer said after her appeal she could take her complaint to the United Nations, which is currently considering three complaints from NSW deaf people who want to serve on juries. No deaf person has ever served on an Australian jury.

HC Online

With the cost of living rising and the lines between work and life blurring stress is a major problem for Australian workplaces. A Medibank survey found that 85% of Australians suffer from sever stress at work. 15% of Australians take sick days at least once a month, costing the economy $14.81 billion annually.

The Australian

John Hartigan & Associates has released a list of strategies to minimise workplace bullying. Mr Hartigan said it was important to look at the behaviour of recruits as well as their credentials. Induction strategies are important to ensure new staff are aware of values, codes of conduct and ethics. Without these policies companies leave themselves vulnerable to what is acceptable and what is not acceptable behaviour in the workplace. Success and productivity in the workplace are linked to emotional intelligence as well as intellectual ability.

NZ Herald

A gay caregiver whose employer called him a ‘f***ing faggot’ and made an offensive limp wristed gesture has been awarded $5000 in compensation for sexual harassment. He was awarded another $8000 in compensation for constructive dismissal after he was forced to resign during a bitter argument in January.

Pro Bono Australia

The Federal Government will introduce a new payment scheme for employees with intellectual disabilities. Previously employees with intellectual disability had their wages assessed under the Business Service Wage Assessment Tool. The Federal Court last year said that the BSWAT model was discriminatory to people with disabilities.

The West Australian

A public servant who was sacked for expressing her views on asylum seeker policy has rejected an offer to settler her unfair dismissal claim out of court. Ms Banerji has been fighting in the Federal Court and Fair Work to save her job by arguing that she should be entitled to express a political opinion. The court battle ceased when the Federal Government offered Ms Banerji a settlement deal if she promised to drop the case and stop talking to the media.

Ferret

A miner has lost his claim for unfair dismissal after he was fired for lying about his drug use. Mr Vaughan tested positive for methamphetamine in April last year. The Fair Work commission sided with the company saying the employee was dismissed as a result of his lack of openness. Prior to the screening he completed a form asking if he had taken any drugs and it was not until further testing was done that proved methylamphetamine was in his system that he admitted to taking an ‘unknown substance’. Anglo American said the employee was dismissed because he was dishonest, not because he failed the test.

06 – 12 January 2014

Smart Company

A study by two economists has found that attractive chief executives tended to boost their company’s share price and the company share price saw a rise when they appeared on television. Their acquisition announcements were also more likely to be welcomed by the markets. The paper did not look at the long-term success of companies with attractive CEOs, only their share price movement after specific events. In business, attractiveness has been shown to partly determine what managers are paid and what loans people can get.

Smart Company

An advertisement by Goodtime Burgers featuring a burger in between a woman’s bottom cheeks has been banned for being exploitative and degrading. Following the magazine’s release with the add, a number of complaints were made. On social media the add was divisive with some users supporting the burger shop and others labelling the campaign revolting and offensive. Goodtime Burgers have said there was no intention for the advertisement to be obscene in any manner nor to be offensive. They said the use of the woman’s bottom was neither in a sexual manner nor to promote a specific sexual activity. ASB found that the advertisement was intended to be a humorous depiction but found it was exploitative and degrading to women.

The Australian

Law firms have started advertising for clients who are seeking to take advantage of the FWC’s new bullying powers. One Melbourne employment law specialist McDonald Murholme has launched radio adds calling for people who are bullied at work to lodge a complaint with the commission.

Bendigo Advertiser

Employers in regional areas will feel pressure to address workplace bullying under new laws that came into effect on January 1. Those in small country town workplaces may be forced to deal with complaints before they go to the Commission. In small towns everyone knows everyone else, so if an employer is reported for bullying and it goes to a hearing the information becomes public. A small number of complaints were made on January 1 when the laws first came into effect.

Lexology

Judd Crompton was summarily terminated after his involvement in three separate incidents in which he was found to have verbally or physically abused and intimidated another employee and a contractor of his employer. When the misconduct came to the attention of the employer, an investigation was commenced by the HR team. The case highlights the importance for employers who are seeking to terminate the employment of employees for misconduct to conduct demonstrably fair and thorough workplace investigations.

The Australian

Graduate Careers Australia, which supplied data on graduate gender pay gaps, has after two decades, axed all references to gender in its latest update after being stung by a critical national debate last year. The decision was made internally.

9News

About ten ‘lactivists’ held a nurse-in at the Rocks on Tuesday after one mother, Ms Bakewell, was asked to move to a bathroom to breastfeed her 18-month-old daughter at a restaurant last week. A staff member told her that other patrons had complained about her breastfeeding and she was asked to finish feeding her daughter in the bathroom. She declined and instead paid her bill and left. Their message to other patrons sharing the restaurant is ‘if you don’t like it, look away.’

The Conversation

Although some commentators have expressed concern that new bullying laws will lead to the FWC being swamped by vexatious complaints several issues have been overlooked thus far in the debate. The most important issue is that any claim of bullying behaviour will still have to meet the necessary requirements – repeated, unreasonable behaviours, that create a risk to health and safety. This means that many complaints will fail to meet the criteria at an early stage and be filtered out. Defence personnel and most state government employees will not be able to make a claim to the FWC. Because no damages can be awarded by the FWC this will considerably change the motivations of people who may make a claim and whether they will have legal representation.