Weekly Summaries
25 – 31 March 2013
Stolen thunder, being blamed for other people’s stuff-ups verbal abuse and unjustified criticism have emerged as the biggest complaint of Australian workers. UMR Research reveals that one in three workers have been bullied at work. 57% believed they had been unfairly micromanaged at some point in their careers. More workers have a perception that the workplace is rife with bulling. A common misunderstanding is that it is not bullying if you have one disagreement with someone at work, as bullying is defined as repeated negative behaviour. Women are more likely to be bullied than men, but are also 10% more likely to be bullies themselves. From July, bullying victims can apply to the Fair Work Commission for assistance to resolve the matter quickly and affordably, instead of going through the courts.
Australian Institute of Family Studies:
A new organisation, the Bully Free Australia Foundation, has recently been set up and aims to provide genuine and enduring care for bullying victims and their families. The foundation exists to empower bullying victims, to support and stand by them. It will also work towards ensuring that anti-bullying laws are implemented and enforced.
Research conducted by Slater & Gordon Lawyers has revealed more than one in three Australians believes they have been bullied at work. The firm commissioned a survey to more than 1000 Australians aged 18 or older. 34% responded that they had been bullied in the workplace. The figure was even higher amongst Victorian respondents at 37%, second to WA where 38% surveyed said they had been victims of workplace bullying. NSW was below the national average on 31% and Queensland was above at 35%. Nationally, female workers were most likely to believe they had been bullied (35%) compered to men (33%). Co-workers were most responsible for bullying cases at 53%. 72% identified that the most common form of bullying behaviour was being spoken to in a hostile, derogatory or condescending manner. Other commonly reported behaviours were spreading gossip or false or malicious rumours (51%) and abuse based on gender, race, sexuality or religion (31%). Less common forms of workplace bullying included physical violence (10%) and weight discrimination (4%). 44% of respondents also reported that they were not aware whether their employer had a workplace bullying policy in place.
Victims of workplace bullying will be able to get help from the Fair Work Commission under new laws. Legislation introduced to parliament this week requires the commission to start dealing with bullying cases within 14 days of an application being made. The Commission will also have the power to make an order to prevent bullying. But the Commission will not have the power to order compensation be paid. The Bill gives a legal definition of bullying and clarifies that it doesn’t include reasonable management action done in a reasonable way.
The Federal Government introduced the Fair Work Amendment Bill 2013 into Parliament on Thursday 21 March. This will allow:
• A worker who has been bullied to make an application to the Commission for an order to stop the bullying
• Define what it meant by bullied at work
• Requires the Commission to deal with an application made by a worker within 14 days
• Enable the Commission to make orders (excluding compensation)
The Commission will also have the power to refer the matter to a work health and safety regulator where it considers it appropriate.
Draft legislation to reform federal anti-discrimination Acts will not proceed and has been sent back to the department for revision.
Legislation prohibiting discrimination on the grounds of sexual orientation, gender identity and intersex status has been introduced into federal parliament. The Sex Discrimination Amendment Bill 2013 also extends the existing prohibited discrimination ground of marital status to marital or relationship status in order to protect same-sex de facto couples from discrimination.
New research from ECU and the University of New England has found women experience more rude and disrespectful behaviour in the workplace, but they tolerated it by working harder. In contrast, men who are treated rudely tended to react by taking longer breaks away from work and taking sick days. The study is of 317 Australian white-collar workers and examines workplace incivility. This is considered to be a step down from bullying, but still has a significant impact on the office environment and productivity. Studies have indicated that women are more likely to be a target of incivility due to power imbalances in the workplace.
A study by the Epilepsy Foundation of Australia has found that almost 50% or epileptics suffer discrimination of some sort. Participants also said they had been excluded (11%) or even assaulted and bullied (5%) at school or work because of their epilepsy. The study revealed a level of unfair treatment within the workplace. The stigma surrounding epilepsy could be so bad that sufferers went on to develop chronic stress, which in turn was likely to exacerbate epilepsy symptoms.
After a three and a half year battle, Julia Haraksin has won a discrimination case against a bus company that wouldn’t let her book a trip because it did not have wheelchair accessible vehicles. Justice Nicolas found that Ms Haraksin had been directly discriminated against – it is unlawful to discriminate against a disabled person by refusing them access, or use of, public premises, including vehicles. The bus company was also in breach of the Disability Standards for Accessible Public Transport 2009. Ms Haraksin is not seeking any compensation.
A former Guantanamo Bay prisoner has won the right to make a claim of racial discrimination against the NSW police. He claims that Australian police have called him an ‘Arab terrorist’ and a ‘Muslim terrorist’. He has taken action in the state’s Administrative Decisions Tribunal. He is alleging five counts of discrimination between 2006 and 2011.
Mature age women not only find it hard to get a job but also earn less than their male colleagues. A study by the Diversity Council Australia has revealed women aged 45 upwards earn only two thirds of the income of men, retiring with half their superannuation. The Australian Human Rights Commission is investigating this discrimination. Commissioner Ms Ryan says the solution lies in hiring more mature workers. An Australian Bureau of Statistics report into unemployment numbers found that one in four people aged 55-59 had faced difficulty applying for jobs but wanted to work.
The owner of WIN television, Bruce Gordon, called a senior executive a ‘prick’, ‘a lump of wood’ and ‘someone who manages the toilet rolls and the weeds’. Mr Hockey is alleging the culture at WIN is rife with bullying and harassment from Mr Gordon. Mr Hockey also alleges that he was misadvised to take a redundancy payment rather than continuing on as a network director. Justice Alan Robertson has reserved his judgement.
A senior manager at the University of Technology Sydney has been found to have engaged in corrupt behaviour by the NSW corruption watchdog. He used his position at work and accepted gifts from contractors valued at $120 000. Mr Faysal had already been investigated and counselled by UTS for breaches to its policies, including conflict of interest. However, he then continued to direct work towards companies that might provide him with personal benefit. Mr Faysal has instigated an unfair dismissal claim in Fair Work Australia.
The Fair Work Commission has ordered an employer to reinstate an employee who was dismissed for breaching the employer’s grooming and uniform policy. The employee refused to cut his hair short because of his body image disorder. If an employee claims he is unable to comply with the terms of a workplace policy because of a medical condition, the employer should carefully consider the circumstances before finding the employee failed to comply with the requirement of his role. Here the man was flight attendant for Virgin Airlines. He firstly informed Virgin that he had grown his hair long for religious reasons and then subsequently he stated that he had medical grounds for not complying with the policy. Commissioner Drib was not satisfied that there had not been a valid reason for his dismissal and said that the decision to terminate was made before he had been given the opportunity to respond. Virgin lodged an appeal of the decision but this has not yet been determined.
Employers will be able to avoid vicarious liability if they have adequate policies and procedure in place, which have been the subject of training, so that the alleged offender should have been in no doubt of the employer’s disapproval of discriminatory conduct as well as taking prompt action upon a complaint being made. Examples of effective employer’s actions include the employer acting promptly to investigate the complaint, they had a policy, employees had to recommit to the code of conduct and attend refresher training on a regular basis. Also it was found that where an employer had provided handbooks to employees and had provided training this combined with prompt action meant nothing further could be done and the employer was not liable.
Nearly a million Australians feel their boss has discriminated against them. The representative survey of Australian households has revealed 854,000 workers feel discriminated against by their employer because of their gender, age, ethnicity, and religion or parenting responsibilities. An additional 270 000 workers felt they were discriminated against on the basis of their gender. Age discrimination was found to be the most common experience. The Melbourne Institute of Applied Social and Economic Research published the report.
18 – 24 March 2013
The federal government has abandoned its controversial anti-discrimination law reforms. The government will not proceed with its plan to consolidate the five anti-discrimination acts and legislative reform will go back to the drawing board. Attorney-General Mark Dreyfus has said that legislation would require more work after a Senate Committee received almost 500 submissions in response to the legislation. The draft legislation was opposed by the Council of Small Business Organisations on the basis it did not protect small business and potentially vilified small business owners by shifting the onus of proof onto them in the event of a discrimination claim. The government will go ahead with one element of the proposed reforms, which is to introduce legislation to protect against discrimination on the basis of sexual orientation, gender identity and intersex status.
Mining giant BHP Billiton has been fined more than $100, 000 for failing to ensure the safety of one of its workers who was killed on the job. Mr McLaughlin was crushed to death by a scissor lift in a workshop in Port Hedland in 2008. The mining company was fined $130, 000 in the Perth Magistrates Court and order to pay $300, 000 in costs. The Court found that BHP had failed to provide instruction and supervision, or implement and enforce a suitable job hazard assessment. BHP said that is would take time to reflect on the court decision and remained committed to continually improving safety performance.
How not to be a workplace bully:
• Talk specifically about certain incidents, do not use generic labels – for example telling a person they have an attitude when they missed a deadline
• Be timely and respectful – deliver performance feedback as soon as possible in private, where it cannot be overheard
• Make sure you are always aware of both sides of the story – there may be mitigating circumstances
• Encourage people to reflect on what they could do different in the future
• Always point out things the person has done right as well as areas that need improvement
• Only deliver feedback on what you observe, not on what others tell you
• Be sensitive to others – bullying and harassment is a matter of interpretation
• People may try and blame others, avoid responding to allegation against you or others which can be discussed at another time
Employees are increasingly deciding that their manager is simply a bully and a growing number are laying very serious complaints. An example was where a boss, working in the healthcare sector, who was having a hard time giving direction to the often very experienced people who reported to him. The employees, mostly women, had always been doing things a certain way and resisted any attempt to change or improve. At one stage, the organisation was receiving two to three complaints of bullying a week. Accusations of bullying are sometimes a defence tactic against criticism. Although unsubstantiated bullying allegations are on the rise, the incidence of genuine bullying is also unacceptably high. Bullying is defined as behaviour that is repeated, systematic and is intended to victimise, humiliate, undermine or threaten. Given that definition, there should be no confusion between a manager’s feedback and bullying. If a bullying allegation is made a third party should be brought in to deal with it.
Women who face rude and disrespectful behaviour in the workplace tolerate it and react by working harder. Women often have to deal with more negative behaviour than men, but men typically react by withdrawing. They tend to take longer breaks away from work and taking spurious sick days. The findings come from a study of 317 Australian white-collar workplaces on incivility. Examples of incivility in the survey included refusing to acknowledge co-workers, general gossip, rolling one’s eyes, texting or emailing during meetings, making derogatory comments or insulting colleagues. Workplace incivility is considered a step down from bullying. However, it still has a significant impact on the office environment. Women tended to be the targets of workplace incivility more often. Women tend to use more passive coping strategies to deal with workplace incivility; they are more interested in putting a stop to the undesirable behaviour than punishing their harasser. However, although women may work initially harder a harassed worker was not productive for a company in the long run.
All non-public sector employers with 10 or more employees are required to report annually under the Workplace Gender Equality Act 2012. Employers must comply with the following new notification and access requirements:
• They must inform employees and shareholders that the report has been submitted
• They must enable access to their report
• They must inform employee organisations that the report has been submitted
• They must give all of the above opportunity to comment
From the 2013/2014 reporting period, the Workplace Gender Equality Act is fully operational and employers must report against a set of standardised gender equality indicators:
• The gender composition of the workforce
• The gender composition of governing bodies of relevant employers
• Equal remuneration between men and women
• The availability and utility of employment, terms, conditions and practices relating to flexible working arrangement for employees
• Consultation with employees on issues concerning gender equality
Almost half of the people who suffer from epilepsy receive unfair treatment or discrimination in the workplace. Unfair treatment may lead to stress, which is likely to exacerbate epilepsy symptoms, and can also trigger other health problems, such as depression and anxiety. A survey found that 47% suffered from discrimination, 11% exclusion as well as assault, bullying and teasing in school, workplace and community settings. Public awareness and understanding of epilepsy is key to dispelling the stigma and discrimination associated with the condition.
Employer groups have attacked the federal government’s introduction of new gender equality reporting obligations, arguing they are so onerous it discourages employers from reporting at all. The laws were directed to attack the low representation of women in senior corporate roles and Australia’s 18.3% gender pay gap. From April employers with 100 or more employers must report on more than 50 topics across gender equality areas. The consequences of not meeting the new obligations are serious for some employers – in addition to being named and shamed those who fail to report are barred from tendering for federal government work and some state government projects, and will not be eligible for some Commonwealth grants. However, there has been some complaint that this will require companies to hire new officers just to meet reporting obligations.
Manipulative colleagues are a problem common to all workplaces. Psychologist Mary Casey says that these people are hard to recognise because they are manipulating you. While openly aggressive behaviour such as bullying is easy to identify, covert attacks are more difficult to sport. Most victims are not aware that they are being manipulated. Most manipulators will try and have the boss on their side as this facilitates their ability to control other people in the office. Dr Casey says that it is important to set boundaries of what is acceptable behaviour. It is important to keep them responsible as often they will try and re-focus the blame on another.
Bitchy women in the workplace who play emotional and tormenting games are responsible for high levels of stress and sickness among their female colleagues. Workplace ‘bitches’, according to Dr Fuller can be classified into eight main categories. Dr Fuller says that the problem is becoming worse in a more uncertain and competitive job market. When women see other women succeeding at work they become jealous and respond with bitchy tactics.
• The excluder – will ignore other women unless she has something personal to gain from communicating with them
• The insecure – micromanages everyone and believes that no one knows better than she does
• The toxic – is a two faced game player who should not be trusted, she will talk about you behind your back
• The narcissist – she is only concerned with her own ego and doesn’t care about the good of the company
• The screamer – she cries for attention and yells to intimidate
• The liar – is a mastermind of manipulations and quick excuses
• The incompetent – they lack knowledge, work ethic and awareness and will make others do the work whilst taking the credit
• The Not-a-Bitch may have an unfortunate or disagreeable manner but is only concerned with doing her job
Two years ago the ACTU released the findings of its Working Australia Census poll of 42,000 people. The results described employees as being under more pressure than ever before. However, this is a surprising result considering the advantage we all enjoy from safety regulations, penalty rates, work/life balance, teleworking, workers compensation, anti-discrimination laws, low unemployment and employee assistance programs. Looking at this closely most of the angst felt by employees is unlikely to be pressure and would be more attributable to stress. Noelene Dawes argues that we have become the victims of a fast-paced life and people feel like they can’t keep up. This has led to more and more people having ‘burn-outs’.
New research has shown more than 6000 people on the Fraser Coast could be victims of workplace bullying. Research conducted by Slater and Gordon found more than one third of workers nationally believed they had experienced bullying at work. The figure was higher in regional Queensland where 39% said they were victims of workplace bullying. The research also found 36% of females in Queensland were likely to believe they had been victims of workplace bullying compared to 34% of their male colleagues. The most common form of bullying was regularly being spoken to in a hostile, derogatory or condescending way.
A female technician at the Isaac Plains mine in Queensland, who claimed to suffer from a psychological injury as a result of her experiences in the workplace toilets, has had her workers compensation claim dismissed. The woman lived on site and was forced to use a toilet and shower in a block, which was also used as a storeroom. In March 2007, she went to use the toilet and noticed a smell of Dencorub, after urinating she wiped herself with the toilet paper and felt a strong burning sensation to her genitals. She alleged that her psychological injury was a result of her manager’s lack of action after the incident. She had complained about the issue of men using the women’s toilets and her concerns were not addressed.
While Work Cover Queensland accepted liability for the worker’s physical injury it denied any liability for psychological claim. This was upheld by Q-COMP, which found that any psychological injury was the result of reasonable management action. The worker than appealed to the Industrial Court. The QIC held that the worker’s depression had not occurred immediately after the physical injury and although the employer had not managed the situation ideally their actions were reasonable. QIC ruled the claim should be dismissed.
The latest communiqué released by Safe Work Australia demonstrates that Workplace bullying continues to be of increasing concern. Safe Work Australia members met on 14 March 2013 where they agreed to respond to recommendations to the Workplace bullying report. The report has been tabled in the House of Representatives Standing Committee. Out of the 23 recommendations made, the Australian Government referred 10 to Safe Work. Safe Work also agreed to release the draft Code of Practice: Preventing and Responding to Workplace Bullying and draft Workplace Bulling – Guide for Workers for public consultation. Figures from UMR Research indicate that co-workers are the most common culprits (53%), followed by managers 47%), supervisors (36%) and business owners (16%) as workplace bullies.
Public Interest Advocacy Centre:
The Federal Court ruled on wheelchair user Julia Haraskin’s three-year battle to have bus company Murrays Australia comply with national disability standards. Justice Nicholas found Murrays had directly discriminated against Ms Haraksin when the bus company refused to accept a booking from her because none of its buses where wheelchair accessible. Justice Nicholas also said Murrays had breached the disability standards. The disability standards came into effect in 2002 and require all new public transport vehicles to be wheelchair accessible and required 25% of transport operators’ existing fleet to be accessible by 2007.
Attorney-General Mark Dreyfus announced Labor would introduce legislation this week to ensure equality for gay, lesbian and transgender people and those of intersex status. The reform to Sex Discrimination Act is long overdue according to Dreyfus. This will mean that people in same-sex relationships will be treated the same as other de-facto couples for commonwealth entitlements. Matters of welfare, tax, superannuation, health and aged care, immigration, child support and family law will also be covered by the changes. Mr Dreyfus also announced that he was sending the government’s draft anti-discrimination bill back to his department for further work but that the government was still adamant about its plan to roll the five existing discrimination statutes, governing age, disability, race, sex and other forms of discrimination into a single piece of legislation.
The proposed national law consolidating five federal anti-discrimination statutes has been put on hold. However, the government is still determine to deliver on its election promise of making sexuality a protected attribute under federal anti discrimination laws. The proposed Bill drew much criticism in particular for the controversial ‘anti-free speech’ provision, which would have made conduct that offends or insults a person with a protected attribute discriminatory.
11 – 17 March 2013
PSnews:
Sex Discrimination Commissioner, Elizabeth Broderick, has used the recent International Women’s Day to draw attention to the worldwide problem of violence against women. She said that Australians have a tendency to believe violence against women was mainly a problem in other countries. However, it is still an enormous problem here in Australia. One in three women in Australia have experienced physical violence at some time since the age of 15. A current/former partner, family, friend or other known male assaulted 85% of women in these cases. She said that violence against women was the worst form of discrimination and in some cases even workplaces did not provide a haven from abuse. 19% of these women said that abuse continued in the workplace through abusive phone calls and emails and the perpetrator presenting at the workplace of the victim.
Smart Company:
Woman wins compensation against legal director
The director of a small legal practice has been ordered to pay $100,000 to a mature-aged law graduate in compensation for sexual harassment, after she accused him of a string of aggressive and bizarre sexual advances. The Victorian Civil and Administrative Tribunal heard the business owner allegedly requested sex 78 times in a single day and even showed her a video of him having sex with a prostitute. The names in the case were kept anonymous by VCAT. VCAT also found the director had secretly filmed encounters between himself and the graduate, who was completing a placement for a diploma. The Tribunal heard the student was subjected to several instances of sexual harassment, including multiple sexual advances, uninvited sexual comments, including a ‘reference to going home and fantasising after rejection’. The owner was also accused of playing pornography in the workplace and sending sexual text messages including a photo of him naked. He was also accused of giving the woman a massage and telling her the room was locked so she couldn’t leave. The case was made more complicated by the fact the woman was friends with the owner before starting the placement. The owner maintained none of the incidents actually occurred, or that these advances weren’t unwelcome. He also said the woman told him she would fabricate a sexual harassment claim. Justice Garde said this wasn’t likely.
GLS v PLP (Human Rights) [2013] VCAT 221
http://www.austlii.edu.au/au/cases/vic/VCAT/2013/221.html
Canberra Times:
CSIRO scientists at the Canberra Deep Space Communications Complex have endured a workplace lolly ban for nearly a year after employer-supplied sweets were declared too risky to worker’s safety. The banning-order was put in place in April last year after a worker’s compensation claim by a former technician who broke a tooth on a CSIRO supplied sweet. The worker, Mr Hoffman, went on to lose his job 4 moths later in another food related incident, alleging that he was sacked for stopping at McDonald’s for a Big Mac. He has now had his Comcare claim for psychological injuries rejected and intends to take his battle for compensation to the Administrative Appeal Tribunal. HR told workers that there would be a ban on supplying lollies for workers to eat and that this will ensure that CSIRO does not hold liability for injuries sustained by an employee choosing to consume confectionary during the course of their working day. Mr Hoffman felt that colleagues blamed him for the lolly crack down.
Daily Telegraph:
Depth of workplace bullying revealed
The biggest complaints of Australian workers include stolen thunder, being blamed for other people’s mistakes, verbal abuse and unjustified criticisms. One in three workers has been bullied at work, new figures from UMR Research reveal, with over half of them being the victim of persistent office gossip or malicious rumours. 57% of employee’s also believe they have been unfairly micromanaged at some point. Women are also more likely to be bullied than men, but women are also 10% more likely to bully others than what men are. Co-workers are responsible for 53% of bullying cases, managers 47%, supervisors 36% and business owners 16% of cases.
Lexology:
Employers’ vicarious liability for sexual harassment
Under the federal Sex Discrimination Act, an employer is vicariously liable for the acts of sexual harassment done by an employee in connection with their employment unless the employer took all reasonable steps to prevent that conduct. In the case of Oracle the Court ultimately ruled that the employer had not taken all reasonable steps because the on-line training did not identify the legislation in Australia that makes sexual harassment unlawful and that an employer may be vicariously liable. Employers should check their sexual harassment policy and make sure that it identifies the legislation in Australia and explains that the employer might also be vicariously liable.
Lexology:
Social media – the compliance challenge
Most employers are now aware that social media is beginning to permeate the boundary between personal and professional life, and the YouTube phenomenon is no exception. An example is the ‘Harlem Shake’ that has recently caused ripples in the workplace. The Harlem Shake received significant media attention when it caused trouble in the workplace and demonstrated the compliance challenges that employers have faced as a result. It has been performed on airline flights and by a group of miners at Agnew Gold Mine, where after reviewing the video employers determined that the employees had breached health and safety standards. These situations serve as excellent reminders on the limits that should exist on use of social media in the workplace and the importance of employer and employee discretion when sharing spontaneous activities that may have occurred in the workplace. A social media policy should be in place so employer’s risks are mitigated and employees should attempt to keep records of activities out of the public domain.
Engineering Source:
Gender imbalance in engineering workforce
According to a survey released by Engineers Australia, women earn lower income than men across the engineering profession, irrespective of hours worked. A survey of 6000 respondents show that women are treated differently than men starting with salaries and extending to a wide range of matters. The current gender composition of the engineering profession is imbalanced as an overwhelming majority of professional engineers are men. Results showed that women were equally qualified, if not more so than men in tertiary education.
Newcastle Herald:
University of Newcastle staff will highlight the impact of workplace bullying and harassment at a rally that will coincide with the release of the results of an anonymous online staff survey conducted by the Stand-Up-Against Bullying group. 45 of the 200 respondents said they had attempted or contemplated suicide. A university spokeswoman said that the university recognised stress and mental health issues were complex and this was reflected in the type and level of support on offer.
The West:
How outfits ruin a first impression
It has been found that many women don’t wear make-up, iron their clothes or wash their hair when preparing for a job interview. 97% of respondents believed that the way people dress and accessorise affects the way they are perceived by others. Fashion faux pas for women in the workplace also included clothes that were too tight or too short, showing too much cleavage or leaving lipstick on your teeth. Women also felt they were judged by the accessories they carried.
PRWeb:
A video that has been released sends a powerful, clear message that bullying will not be tolerated in Victoria, and coincides with the National Day of Action Against Bullying and Violence. The video includes the parents of 19-year-old Brodie Panlock and will be used to educate Victorians about the dangers of bullying and their ability to take action to stop bullying. The video urges Victorians to make a report to police if you or someone you know is being bullied, and reminds people that laws are in place that could result in up to 10 years in jail as punishment. The video reinforces the idea that everyone has a responsibility to take a stand against bullying.
The Satellite:
Govt takes tough approach to workplace bullying
The Federal Government has taken steps it hopes will stamp out workplace bullying. Under the change people with a workplace bullying complaint will have it listed and hear in 14 days. The majority of the 23 recommendations made in the Parliamentary Report on bullying will be supported in the proposed legislation. Changes include adopting a national definition, recognising that bullying does not include reasonable management practices; it will allow workers to make a complaint to the Fair Work Commission and for this to be considered within 14 days.
Dynamic Business:
Supportive workplaces key to good mental health
Mental health in Australia remains a taboo topic, particularly in the workplace. However, employers can play a key role in improving mental health statistics by providing comfortable environments where employees with poor mental health can thrive. Employment of people with mental disorders is 15% lower than for people without a mental disorder. Though many of them would like to work they are twice as likely to be unemployed. People can recover better in workplaces where they are stimulated by social connection so the best workplaces are those that encourage social connections between employees rather than having each person shut off in a cubicle.
The Australian:
Topless barmaid fights hotel dismissal
A topless barmaid said she was unfairly dismissed after refusing to change kegs in the cool room in her underwear. She said she had been given no warning, or reason for her dismissal. She is arguing that just because she is topless does not mean she deserves any less respect.
Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1)
http://www.comlaw.gov.au/Details/F2013L00434
4 – 10 March 2012
Social media is becoming a necessary tool for most companies and organisations in the expansion, marketing and networking of their business. However, issues such as inappropriate use of media, defamation, harassment, misleading and deceptive conduct and uncertainty over the ownership of intellectual property mean that companies must have a clear social media policy. In O’Conner v O’Conner FWA suggested that excessive use of social media during work hours might constitute a valid reason for dismissal. In Stutsfel an employee was dismissed for serious misconduct as a result of comments posted on his Facebook profile concerning two of his supervisors. They were considered to be racially derogatory and sexually discriminating to two of his managers. Companies can prevent litigation by defining the scope of acceptable use and ownership of content within social media through company policies.
A recent study has shown that an increase in the misuse of social media in the workplace has lead to cyber bullying and harassment. Small businesses and entrepreneurial set-ups are especially vulnerable to cyber bullying and harassment due to there being a lack of processes, policies or codes to address the issue of social media usage in the workplace. 62% of Australians who were surveyed believed that privacy in the workplace has been eroded with the proliferation of social media. 8% of Australians discovered colleagues using social media initiated secret discussions about them online. 10% have had embarrassing photos or videos taken at a work event. 7 % found themselves subjected to unwanted romantic advances through online media.
15 mine workers were sacked for doing the Harlem Shake dance craze while working underground. The eight dancers, a worker who recorded the stunt as well as several onlookers were fired after the video they posted on YouTube went viral. A dismissal letter sent to the workers also stated the men were banned for life from working at any of Barminco’s projects. An unnamed worker who participated in the stunt said the group did not endanger safety because they abided by requirements for helmets, portable oxygen and other safety measures. He also added that long-sleeved shirts were only removed to prevent the Barminco brand being seen. Barminco said they saw the stunt as a safety issue and a breach of its core values of safety, integrity and excellence.
Sexual harassment exists in workplaces in almost all societies across the globe as a report by the International Labour Organisation found. Between 40 – 50 per cent of women in the EU experience unwanted sexual advances, physical contact, verbal suggestions or other forms of harassment. In Australia 25% of women claim to have been harassed. Men can also be victims of harassment however this is much less common across the world.
Increasingly employees are deciding that their manager is a bully and they are laying complaints or making stress claims under workers compensation. Criticism on job performance is often misconstrued as an attack on them as a person, rather than an attempt to correct a fault. About 6.8% of workers say they have been bullied in the past six months and each case costs employers $17 000 to $24 000 in direct and indirect costs. It is predicted that this will proceed to get worse under the proposed anti-bullying amendments. These changes may result in a pandemic of complaints where people look to the Fair Work Commission at first instance rather than trying to resolve the matter with their employer.
Men continue to greatly outnumber women across all leadership positions in the public and private sector. Debate continues over the best way to increase the participation of women in leadership positions, many countries are opting for mandatory quotas of women for boards of directors. However general consensus in Australia is for businesses to attain voluntary targets. The Business Council of Australia has argued against quotas insisting that simply achieving a change in board membership did not lead to other necessary changes in female participation in executive ranks.
Fifteen workers have been reportedly dismissed by a gold mine over performing the Harlem Shake dance, highlighting the need for strict workplace safety politics and to clamp down on them consistently. Legal and HR experts say the incident is a prime example of how businesses need to have safety guidelines in place before these types of activities occur. Not only were the employees let go, they have been banned from appearing at any Barminco site around the world. A Facebook page has been set up advocating for the workers to get their jobs back. However, experts believe that this incident is more or less clear-cut. The business had a safety policy outlined before the incident took place and then acted according to their policy. Typically on mining sites the health and safety policies are very stringent and they’re enforced very strictly. However, the issue that onlookers have been affected by the decision may result in an unfair dismissal case.
Court clerk Rebecca Ramstrom’s extreme physical and emotional reaction to magistrate Joseph Baldino’s sexual harassment was ‘something you cant fake’ a court has heard. Ms Ramstrom is seeking compensation from Mr Baldino. She has claimed that while working as his clerk between 2008 and 2010 Mr Baldino subjected her to repeated sexual harassment that escalated from lewd comments to smacking her buttocks with a court file. Lawyers for Mr Baldino have questioned whether their client has been targeted for a lucrative payday. They claim Ms Ramstrom sent Mr Baldino innuendo-laden emails during their ‘friendly’ relationship. The trial will resume later this year.
The working mum is not a new concept in Australia but it is one that has struggled to get support and recognition. Governments and businesses are starting to show signs that they value working mothers. The ABS found that almost 80% of women whose youngest child is aged between six and 14 participated in the labour force in 2010 to 2011. Three quarters of these women returning to the workforce do so out of financial need. The Federal government has announced plans to amend legislation so that new mothers have an explicit right to ask their boss for flexible work after maternity leave. Sex Discrimination Commissioner Elizabeth Broderick says that while there is evidence of a policy and community shift real change in the predominate employment culture is going to have to focus more on working fathers. This will send the message to employers that taking parental leave and accessing flexible work arrangements is not a career killer.
One of the mineworkers fired for doing the Harlem Shake has said that he was a dedicated employee known for his work ethic, and not a clown who deserved the sack. Mr Dixon has engaged lawyer John Hammond to launch an unfair dismissal claim saying it was harsh and unjust to sack him over the 30-second dance routine. Mr Dixon has claimed that it was harmless fun. He said that the dance was meant to boost morale amid job security fears. He said that the men discussed the issue of safety before the dance ensuring they wore the necessary helmets, caps, lamps, glasses and portable oxygen devices. He conceded they breached regulations by not wearing long sleeved shirts. Barminco has said that safety was an unconditional priority.
Barminco has been accused of double standards over the Harlem Shake dismissals because it did not sack an employee over a previous safety breach. Mr Boyle said that Barminco did not apply the same safety standards when it decided not to sack the office worker who drunkenly misused a safety device at an office party. He argues that it is unfair that 15 miners were sacked for a 30 second dance routine when the office employee was not dismissed.
A reluctance to talk about sexual relationships between employees can hamstring firm’s dealings with conflicts of interest and leave them exposed to legal liabilities. Employers are still reluctant to meddle in a person’s personal life. However, some businesses have very strict rules requiring employees to notify their employer when they become involved in a workplace romance. A popular solution in America is a ‘love-contract’ where employees sign a document for their employer confirming they are in a consensual relationship. A love contract may not always defuse the risk of a later sexual harassment claim but it could help promote conversations about how the relationship could be managed to avoid conflicts and also to remind the couple of their obligations to the company. It would also assist the company in a defence proving they had taken steps to prevent sexual harassment or bullying. In Australian no organisation has gone as far as to introduce love contracts.