What’s been happening in Australia in relation to sexual harassment, discrimination, and bullying from 06 May 2024 – 12 May 2024

Is raising your voice at a worker considered bullying?

The Fair Work Commission (FWC) recently dealt with an application made by a worker for an anti-bullying order. The worker, an employee of Yarra City Council, contended that at various times from September 2023, he was subjected to bullying by his employer and its infrastructure manager. The employer denied that the worker was bullied and opposed the making of an order. It said that the manager was merely frustrated at the worker’s performance and that it was part of the former’s job to “manage people”.

The FWC said that the employer’s manager of people and culture gave evidence that the Council did not consider that the worker had been subjected to bullying. She stated that the requirement for the worker to attend the office five days a week was a means of managing his performance and providing him with appropriate support. The infrastructure manager acknowledged that he had raised his voice but expressed remorse for doing so. The FWC noted that “raised voices are to be avoided in the workplace, but rare deviations should not be judged too harshly.”

The FWC made several key findings in this case. It accepted the infrastructure manager’s evidence that he raised his voice on two occasions but not to the point of yelling. The FWC determined that even if the two instances of raised voices amounted to repeated unreasonable conduct, they did not amount to bullying because there was no persuasive evidence that they caused a risk to health and safety. The FWC also found that the employer’s concerns about the worker’s performance were genuinely held and that the requirement for him to attend the office five days a week was reasonable. Ultimately, the FWC was not persuaded that the worker was bullied at work or that there was a risk of future bullying.

New study busts ‘myth’ that gender pay gap exists because more women work in lower paid occupations

New data has debunked a “myth” that the gender pay gap exists on account of occupation choice, revealing the majority of Australia’s national gender pay gap is due to women being paid less than men within the same occupation. e61 Institute, a non-partisan economic research institute led by former Productivity Commissioner Michael Brennan, conducted analysis of tax data exploring the origins of the gender pay gap, which according to the Australian Bureau of Statistics is 12%.

Whilst some argue the gender pay gap derives from women choosing lower-paying jobs, such as nursing, teaching and early childhood care, researchers at the e61 Institute says this factor accounts for only 20% of the gender pay gap. The organisation’s research found that the remaining 80% is due to men being paid more than women in the same occupation.

FWC finds early notice of end to fixed term contract amounts to dismissal

In the recent decision of Warren George Francis v Volunteer Marine Rescue Qld Inc [2024] FWC 978, the FWC has held that providing early notice of non-renewal for a fixed-term contract can constitute dismissal. Mr Francis commenced employment with the Volunteer Marine Rescue Association as a State Training Officer in January 2021 on a six-month contract. Mr Francis was one of five workers engaged on fixed term contracts ahead of its anticipated merger with another volunteer organisation. He later signed a one-year contract in June 2021 and another in December 2022, retroactively effective from July 2022 and on the same terms set out in the June contract.

A month after signing the most recent contract, Mr Francis was suspended on full pay pending an investigation of an allegation that he had threatened violence against one of his colleagues. On 14 June 2023, Mr Francis received an outcome letter for the investigation advising that the allegation could not be substantiated. The letter also stated that the investigation had revealed a “highly undesirable” level of tension between Mr Francis and the complainant. Two days after this, Mr Francis was informed in writing that his employer had decided not to extend his contract beyond June 30, 2023, when the terms were set to expire. Mr Francis made an application to the FWC under section 365 of the Fair Work Act 2009 (Qld) that he had been dismissed in contravention of the general protections. He claimed that, having regard to the two letters dated 14 and 16 June 2023, it was clear that he had been dismissed within the meaning of section 386 of the Act. Mr Francis also told the FWC that he expected to continue in his role until the merger eventuated. His employer objected to the application on the basis that Mr Francis was not dismissed, rather his employment ended with the contract’s conclusion.

The question before the FWC was whether the employer dismissed Mr Francis in accordance with section 386(1) of the Act. If Mr Francis was not dismissed, he would be prevented from bringing proceedings alleging adverse action involving dismissal against his former employer. The FWC found that Mr Francis’ expectations that the contract would continue were reasonable. It was considered that after signing the third employment contract in December 2022, neither Mr Francis or the employer expected the employment relationship to end upon conclusion of the fixed term of the contract, barring funding issues.

The FWC distinguished the current matter from Timothy Andrew Alouani-Roby v National Rugby League Limited, Bernard Sutton and Graham Annesley [2022] FWCFB 171. In the latter, the former referee’s general protections application was dismissed on the basis that his employment was not terminated on his employer’s initiative. Instead, the Full Bench found his employer acted passively by letting the fixed term contract expire. The FWC found that the reason the employer did not issue Mr Francis a fourth contract was because they “did not wish for Mr Francis to continue performing the duties he had been performing for two and half years”. On this basis, the FWC was satisfied that Mr Francis did not leave the employment relationship voluntarily, “rather, it was the action of the Respondent in deciding against offering a further employment contract, for which it was confident of the funding for the role, that resulted directly in the termination of the employment”.

Addressing psychosocial hazards: don’t do it just to avoid liabilities

Addressing psychosocial hazards in the workplace shouldn’t be just about mitigating legal and financial liabilities, which is a growing misconception as more legislations addressing these hazards emerge across Australia.

Tom Nehmy, Director and Principal Psychologist, Healthy Minds, underscored that psychosocial functioning in a workplace is within the domain of wellbeing, and there is a clear link between wellbeing and work performance. He made the remarks amid growing legislation across Australia that obligates employers to mitigate psychological hazards at work. These hazards, according to Nehmy, are common risks for harm that are predominantly non-physical in nature. Good leaders have a “natural affinity” for considering and acting on psychological hazards at work. If you want a high-performing workplace and work culture, psychosocial factors of all kinds should be on your agenda anyway,” said Nehmy.

Employer revokes job offer after worker requests salary transparency

The FWC recently dealt with a general protections dispute involving dismissal. The case involved a worker who claimed to have been dismissed by the employer revoking its offer of employment. The employer raised a jurisdictional objection, arguing that the worker was not terminated as he was never an employee of the company. The case highlighted the importance of clear communication and understanding between employers and prospective employees during the hiring process. It also raised questions about the boundaries of workplace rights and the consequences of exercising them. The dispute arose in the context of Australia’s fair work legislation, which aims to protect workers’ rights and prevent discrimination in the workplace.

The Fair Work Act 2009 provides employees with the right to lodge complaints or inquiries with their employers without fear of adverse action, such as dismissal or discrimination. In 2022, the Australian government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, which introduced new provisions to enhance wage transparency and reduce the gender pay gap. This amendment allows employees to discuss their pay with colleagues and request salary information from their employers without fear of reprisal. Citing the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the worker emailed the employer requesting information about the incumbent’s salary. He believed this discussion was important for evaluating the job offer and ensuring fair compensation. The worker stated in his email: “In order to make a comprehensive evaluation of this opportunity, I was hoping you could provide some additional information regarding the compensation for this position. Specifically, if the current incumbent is comfortable with disclosing, I would like to understand if the salary offered to me aligns with what the current incumbent is earning.”

The employer expressed confusion about the worker’s request and stated that they would not disclose the incumbent’s salary information. Following an email exchange and a brief phone call, the employer sent an email rescinding the job offer.

The worker alleged that the employer took adverse action by terminating his employment, violating his workplace right to lodge a complaint or inquiry without fear of reprisal. He cited discrimination as the primary cause of his dismissal, suspecting that the wage discrepancy between him and the incumbent was due to his skin colour, race, and religion. The worker stated: While it was not disputed that the worker orally accepted the employer’s offer of employment during the telephone conversation on 13 October 2023.

The FWC took into consideration several significant facts. Firstly, the onboarding email sent to the worker had a number of matters that he would need to attend to as conditions precedent to the commencement of employment. These requirements were stated as “must” be completed and “required” to complete. None of the requirements were completed prior to the offer being rescinded by the employer. Secondly, the worker’s email on 14 October 2023 demonstrated that he was “sitting on the fence, evaluating the written offer that had been put to him, awaiting further information from the Respondent before he would commit in writing.” The worker requested the extent and reason for the difference if the incumbent was earning more than $75,000 per annum.

The FWC was satisfied that the proposed employment relationship did not materialise into an actual employment relationship. The offer was rescinded by the employer while the worker was “weighing up his options. “[He] never performed any services for the [employer] and the [latter] did not make any payment to him. Any potential relationship between the parties was dissolved by 16 October 2023, well before the proposed commencement date of the employment relationship on 23 October 2023,” the FWC said. “There cannot have been a dismissal if the employment relationship was not in existence,” it added. Accordingly, the employer’s jurisdictional objection was upheld, and the worker’s application was dismissed.

Senior female engineer quits over director’s ‘misogynistic’ behaviour

The FWC recently dealt with an unfair dismissal case involving a senior principal engineer who claimed she was forced to resign due to bullying and misogynistic behaviour from a technical director. The worker, who had been employed by the company for 13 years, alleged that she had been subjected to harassment, put-downs, and passive-aggressive behaviour from the technical director since 2020. The employer conducted an investigation and the bullying was not substantiated, but issues related to psychological safety were identified, around team design and project clarity and an offer to provide mediation for the parties. The worker resigned within 2 hours of the meeting.

The Commission found that the worker’s resignation was not a case of constructive dismissal, as the employer had taken reasonable steps to address her complaint and had not engaged in conduct that left her with no choice but to resign. However, the FWC acknowledged the significant stress and frustration experienced by the worker due to the technical director’s behaviour and the challenges of working in a male-dominated environment were real and the need for the employer to create a workplace that supports and values all employees.