What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 01 April 2024 – 07 April 2024

Female Tradies in Australia Changing Their Names To Get Job Interviews Because: “We Don’t Hire Women and We’re Not Going to Interview You”

Female tradies in Australia are altering their names to appear more masculine in an attempt to land an interview with a potential employer, according to reports. Hacia Atherton, Empowered Women in Trades chief executive and founder, shared with 9News the discrimination faced by women in traditionally male-dominated trade industries.

“Some of these women have been calling over 30 employers trying to get an interview for vacancies that are being advertised and these women are actually being told: ‘We don’t hire women and we’re not going to interview you,'” she told 9News in an interview.

“Gender doesn’t make you a good plumber or a bad plumber,” she told 3AW. “It’s your skills, your ability to problem solve, your ability to use your hands. It doesn’t matter if you’re a girl or a guy or a non-binary person – if you’re good at the trade, you’re good at the trade.

Former Sex Industry Worker Challenges Employer Over Claims She Was Fired Due to Her Past

Chelsea Sirolli was two days into a new job when she was fired. The 33-year-old had been hired to work at a real estate agency in regional Victoria. The next day, Ms Sirolli claims she was called into a meeting and sacked, after a colleague complained to human resources after seeing pornographic images of her online (when she previously worked as a sex worker).

In 2022, Victoria reformed their Equal Opportunity Act and made it unlawful to discriminate against someone for being a sex worker (past or present). Ms Sirolli has now lodged a complaint with the Victorian Tribunal on the basis of unlawful discrimination.

What is Happening with Religious Discrimination Laws in Australia?

The Australian Law Reform Commission recommends that the federal Sex Discrimination Act 1984 be revised to explicitly forbid religious educational institutions from discriminating on the basis of “sex, sexual orientation, gender identity, marital or relationship status, or pregnancy” against teachers, all other workers, and students and their parents. 

It also recommends allowing religious institutions to indirectly discriminate (as long as reasonable) to accommodate the special needs of these institutions, as well as protecting the ability of religious educational institutions to train religious leaders in a way that abides by the requirements of their faiths.

The protection of indirect discrimination preserves the rights of religious institutions but it shifts the burden of defending those rights. Instead of these rights existing and it being upon an LGBTIQ+ person to have to prove the overwhelming individual and social harm of certain exercises of these rights, now it is on religious organisations to justify the exercise of these rights when they have negative impacts on people.

The report also recommends that the Fair Work Act 2009 be amended to specify that religious institutions can still prefer persons of faith in their hiring decisions so as to help in building and maintaining “communities of faith”. This exception only applies to hiring, it cannot be used to hold people back in promotion, or to fire people.

Tribunal Disqualifies Nurse for Five Years for Repeated Sexual Harassment

The South Australian Civil and Administrative Tribunal (the tribunal) has disqualified a registered nurse from re-applying for registration for five years after he continually sexually harassed a work colleague for seven months. Between June 2020 to February 2021, Mr Andrew Atkins touched or exposed his penis on multiple occasions in the presence of a work colleague while sharing desks adjacent to each other at the Royal Adelaide Hospital. When the frequency and seriousness of Mr Atkins’ conduct escalated around 15 December 2020, his colleague told him his behaviour needed to stop. Mr Atkins’ behaviour resumed in early 2021 and he was reported to a manager on 19 April 2021.

The tribunal found that Mr Atkins had engaged in professional misconduct and ordered that he:

be reprimanded,

be disqualified from re-applying for registration for five years, and

be prohibited from providing any health service until such time as he is re-registered by the NMBA.

The tribunal noted that Mr Atkins was non-committal and evasive about the details of his conduct, demonstrating a lack of remorse. They also commented that the conduct was ‘abhorrent and highly repugnant’, demonstrating a lack of common decency and respect for work colleagues. They felt a strong need to demonstrate to members of the profession and public that behaviour of this nature is not to be tolerated.

ADF Spells ‘Disruptive’ Life for Struggling Members – Other Issues Raised Included Reports, Largely from Women, Of Sexual Harassment, And Unsafe Work Environments.

The federal Royal Commission into Defence and Veteran Suicide is in its final days of hearings as it hears the emotional cost involved with defence employees moving every few years.  While relocation might sound like a travel opportunity, Australian Defence Force members with families say the price of strained relationships and worsening mental health is too costly.

Other issues raised included reports, largely from women, of sexual harassment, and unsafe work environments. More than 25 per cent of members report experiences of unacceptable behaviour. It’s final report is due to be handed down in September.

‘Tripartite Agreement’: Can a Worker Have Two Employers?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged that two companies were involved in his dismissal claim. One of the alleged employers objected to the application, arguing that they were merely a host employer under a labour hire agreement.

The case discussed the complexities of such contracts and the question of whether the worker was genuinely dismissed by the employer. The FWC also had to consider the effect of the worker having filed both an unfair dismissal claim and a general protections application in relation to the same dismissal.

The worker asserted that he was employed in a “tripartite agreement” involving EPG and JD.com, with JD.com exercising control over his employment on a daily basis. The FWC acknowledged that JD.com exercised significant control over the worker’s performance of his work but noted that this was not necessarily inconsistent with the worker’s contract being with EPG in a genuine labour hire arrangement.

Consequently, the FWC dismissed the worker’s application, finding that it was prohibited by s.725 of the Act due to the worker having already filed an unfair dismissal claim relating to the same dismissal. Furthermore, the FWC found that even if the application were not barred, JD.com was not the worker’s employer and could not have dismissed him in contravention of the general protections’ provisions.

Does ‘Intention’ Matter in Sexual Harassment Claims at Work?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed an application alleging that he was unfairly dismissed by his employer, a company operating an alumina refinery. The worker, who was employed as an Advanced Mechanical Tradesperson, was dismissed after an investigation into an allegation that he had inappropriately touched a female colleague while at work.

The worker commenced employment in April 2004 and was subsequently promoted to the position of Advanced Tradesperson. His employment was covered by a written contract and an enterprise agreement. Prior to the events leading to his dismissal, the worker had been the subject of coaching and disciplinary action related to touching, grabbing, and shoving other employees, as well as failing to wear personal protective equipment. The worker turned his back to a female colleague, Witness A, and pushed between her and the desk, contacting her lower torso.

Witness A reported that the worker had placed his hands “low and underneath her bottom,” causing her to jump and make a noise from the unexpected contact. She also reported previous instances of inappropriate conduct by the worker, such as grabbing her shoulders and physically moving her out of the way. “Regardless of his intention, the location of the contact was in an intimate sexual location. Its impact on Witness A was immediate and ongoing,” it added. “Sexual harassment within the workplace is categorised as serious misconduct within the Fair Work Regulations, is unlawful pursuant to s.527D of the Fair Work Act 2009 and is noted in s.387 as conduct that can amount to a valid reason for dismissal,” the FWC said.

The FWC had to consider factors such as the validity of the reason for the dismissal, whether the worker was notified of the reason and given an opportunity to respond, and the impact of the employer’s size and human resource expertise on the procedures followed. Ultimately, the FWC found that the worker’s conduct was “serious,” and that his dismissal was not harsh, unjust, or unreasonable. It then dismissed his claim against the employer.

NSW Supreme Court Rejects Employer’s Summary Dismissal Amid Workplace Injury

The Supreme Court of New South Wales recently dealt with a case involving a worker who sustained a lower back injury while working. She commenced proceedings against the employer, alleging that her injuries were caused by the employer’s negligence and breach of duty as the occupier of the premises.

The employer sought summary dismissal of the proceedings or, alternatively, a separate determination of the worker’s employment status. The case raised complex issues regarding the worker’s employment status, the applicable legal framework for assessing damages, and the procedural requirements for commencing court proceedings.

The worker sustained an injury to her lower back on March 30, 2015, while working in a cool room at a grocery store in Cobar, NSW. Initially, the employer denied that the worker was its employee, suggesting that she was employed by another entity, Khan’s Supermarket (Cobar) Pty Ltd.

Furthermore, the employer contended that the worker was required to comply with certain “pre-filing requirements” under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) before commencing proceedings. The employer sought summary dismissal of the proceedings, arguing that the worker’s failure to comply with the “pre-filing requirements” meant that the proceedings disclosed no reasonable cause of action.

In its decision, the court refused the employer’s application for summary dismissal, finding that there was a real question to be determined regarding the worker’s employment status. The court emphasized that summary dismissal of a claim is only appropriate in the clearest of cases and that the power should be exercised “sparingly and with restraint.” The court noted that the worker had presented evidence suggesting that Khan’s was her employer, including wage and superannuation records, workers’ compensation insurance details, and a register of injuries.

The court stated that the legal consequences of non-compliance would depend on the proper construction of the relevant legislation, which had not been fully argued before the court. Thus, the court dismissed the employer’s application for summary dismissal.

Manager Dismissed Over Store Robbery Seeks Late Claim Extension and can claim monies he believes are owed on termination independent of unfair dismissal applications

The Fair Work Commission (FWC) recently dealt with a case involving a worker who applied for an unfair dismissal remedy against his former employer, a retail business operating nationwide. The case revolved around the worker’s dismissal, a police investigation into a robbery at the store where he worked, and the effects of “stress and anxiety” on the worker’s ability to pursue his workplace rights. The worker’s application was filed 748 days outside the statutory 21-day period for making unfair dismissal claims, and he sought an extension of time, which the employer opposed.

The worker was employed as a store manager and was responsible for adhering to the employer’s policies concerning cash handling and cash banking. On January 12, 2022, a robbery occurred at the store, and a safe and an amount of cash were stolen. The police attended and commenced an investigation. The following day, the worker was summarily dismissed for alleged failure to comply with policies and instructions related to cash handling and banking. Following the dismissal, the police attended the worker’s private residence and seized certain personal property as part of the investigation.

The FWC examined the delay period in three sub-periods: the period during which the police investigation was active, the period between the conclusion of the investigation and the worker completing the unfair dismissal application form, and the period between completing the form and filing it. The FWC found that the police investigation only somewhat explained the delay in the first period, but not the second or third periods, except for the final eleven days, which were reasonably explained by the worker’s mother being preoccupied with her husband’s ill health.

After considering all the factors, the FWC found that there were no exceptional circumstances warranting an extension of time for the late lodgement of the worker’s application.

‘Threatened Dismissal’? Commission Orders Employer to Consider Allegations

The New South Wales Industrial Relations Commission (IRC) recently dealt with two applications filed by a worker (in a hospital): an unfair dismissal application related to a threatened dismissal and an application for relief from victimisation.

The worker, represented by the Health Services Union, sought an order to prevent dismissal until the hearing of the applications. The worker’s affidavit set out high-level allegations that the disciplinary procedure they had been subjected to arose because of union activity, membership, or assertion of other protected workplace rights. The worker also denied engaging in certain conduct that could lead to their dismissal. The worker, showed evidence that a hospital executive had proposed to recommend to the chief executive of the local health district that the worker be dismissed.

The IRC was satisfied that this constituted a threat of dismissal, which could amount to victimisation. The IRC agreed with the worker that he faced a threat of dismissal. It also noted that the worker had not been suspended, suggesting that the employer was content to have the worker in the workplace while working through its processes. The IRC acknowledged some detriment or inconvenience to the employer in being unable to complete its disciplinary processes and having to keep in its employ a person alleged to have engaged in serious misconduct. However, this had to be balanced against the more serious loss the worker would suffer. Thus, the IRC issued orders in favour of the worker and said the employer was not allowed to dismiss him until the allegations against him are made out in a proper proceeding.