What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 1 June 2020 – 7 June 2020

Fair Work Commission Says Employee Used Stop Bullying Order to Deflect Justifiable Action by Employer

In the recent decision of Tanka Jang Karki [2019] FWC 3147, Fair Work Commission Deputy President Sams warned that employees are applying for ‘stop bullying orders’ ‘as a deflection, or diversion, or even to overturn a justified disciplinary action.’ The Fair Work Commission case concerned Tanka Jang Karki, a Bellman at The Star. Mr Karki applied for a bullying order after Front Office Manager, Jessica Sykes, reprimanded him for breaching employee policy and using his phone on the job. In doing so, Mr Karki claimed Sykes publicly abused, embarrassed and harassed him. While Mr Karki claimed he was only using his phone to check the time, CCTV footage confirmed he was using it for more than the 3 to 5 seconds he alleged. On hearing the application, the Fair Work Commission found that the Star and Office Manager Ms Sykes’ actions ‘constituted reasonable management carried out in a reasonable manner.’ In other words, Mr Karki was not bullied at work. Normally, the Commission can exercise its jurisdiction to grant a stop bullying order to prevent bullying at work. However, Deputy President Sams said that hearings such as this demonstrate that stop bullying applications are being misused as a shield or diversion against justifiable management action. And while Mr Karki may have genuinely felt aggrieved by his employers’ actions and felt ‘harassed, bullied or targeted’, the legal test of what constitutes bullying does not consider the workers own belief. Rather, it is an objective test. A key takeaway from Deputy President Sams’ decision is that employers have the right to manage and discipline employee misconduct and poor performance. And further, the Commission should not be invoked to resolve disputes until all internal avenues are exhausted.

Former Employees of A League Teams Sue for Damages Related to Bullying

Former employees of two new A-League teams are suing the New South Wales clubs over allegations of poor working conditions and mental health damage. The employees have lodged two separate adverse action cases in the Federal Circuit Court against Western United and Macarthur FC, both of which are new to the A-league division. Nejc Kodric, Western United’s team manager from June to December 2019, alleged he was repeatedly bullied by coach Mark Rudan. In his application, Kodric outlined 13 instances of bullying by Rudan. This included an incident in which Rudan directed Kodric to wash his soiled laundry. The court documents also alleged Rudan would verbally abuse Kodric in front of other staff, including on one occasion when Kodric put the captain’s armband in the wrong player’s locker. Kodric also claimed that Western United ignored his complaints at least five times. In his application to the Federal Court, Kodric stated that these incidents caused him to suffer a mental illness and forced him to leave his position. The second allegation came from Neil Favager, who joined Macarthur FC as chief operating officer (COO) in October 2019. Favager claimed that the change in ownership and move to the A-leagues resulted in ‘significant health and safety issues.’ Both Western United and Macarthur FC have denied the allegations. In relation to Mr Kodric’s allegations, chief executive Chris Pehlivanis said ‘[t]he club vehemently denies the claim.’ Similarly, Gino Marra, chairman of Macarthur FC chairman, said that Favager’s claim ‘is false and fabricated.’ He continued that Macarthur FC ‘will vigorously defend this and lodge a strong defence in this matter.’