What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 11 – 17 July 2016

Oncologist Drugs and Indecently Assaults Work Colleague
A female doctor has stated that she has been “left with deep emotional scars” after being drugged with a heavy sedative and indecently assaulted by former senior oncologist John Kearsley. The female doctor who was a medical trainee at the time said she knew that coming forward would cause problems for her career, as she was “at risk of being labeled a troublemaker.” Mr Kearsley spiked his colleague’s champagne with a type of benzodiazepine before indecently assaulting her whilst they were having dinner at his residence.

Mr Kearsley pleaded guilty in February to using an intoxicating substance to commit an indictable offence, and assault with an act of indecency. Following this plea, Mr Kearsley’s employment was terminated by South Eastern Sydney Local Health District. The SESLHD noted that employees must “comply with the NSW Health Code of Conduct” and that “sexual assault, sexual harassment, bullying and any other form of inappropriate behaviour is not tolerated by the district and has no place in our workplace.” The sentencing hearing is continuing.

ANZ Employee Withdraws Unfair Dismissal Claim
Australia and New Zealand Banking Group has stated that Etienne Alexiou had withdrawn a lawsuit claiming unfair dismissal. Mr Alexiou was terminated following findings by the bank of inappropriate conduct including lewd and explicit communications about sex and drugs, over the internal chat terminal used by employees. Mr Alexiou had alleged that his dismissal was unlawful, unfair or in breach of contract because the conduct for which he was allegedly dismissed was conduct of a type which was in fact encouraged or condoned, directly or indirectly by ANZ.

This case was mentioned in the weekly summaries from 29 February-6 March 2016 and is now the closure of the matter.

Employer Apologises for Inappropriate Actions of Employees While Off Duty
Michael Page Recruitment has issued an apology after its staff members were involved in a wild party at a Victorian ski resort. It is alleged that the behaviour of the staff members at the party included “profanities, threats and verbal abuse” directed towards the manager of the ski resort. Michael Page Recruitment has stated that the trip was not a company-funded trip, but that it held its employees to the highest standard of ethical behaviour “whether they are officially representing our company or not.” Further Michael Page noted that they are “undertaking a thorough investigation into the matter and will make sure that all the individuals involved are interviewed and the appropriate disciplinary action will be taken.”

Surgeons to be Trained on Inappropriate Behaviours
The Royal Australasian College of Surgeons has launched new, online training on discrimination, bullying and sexual harassment. Mandatory education on discrimination, bullying and sexual harassment for all Fellows, Trainees and International Medical Graduates was one of the core commitments of the RACS 2015 Action Plan: Building Respect, Improving Patient Safety.

While this is a good start the reality is that significant behavioural change is required within the profession of surgeons and behavioural change rarely occurs through on-line training. In-person, customised, interactive training is the best opportunity for real behavioural change.

FWC Upholds Tolls Dismissal of Long Term Employees for Inappropriate Behaviours
Mr R and Mr Y were employed as dockhands and drivers for Toll for a period of 28 and 13 years respectively. Mr R and Mr Y were dismissed after an investigation conducted by Toll held that they had conducted themselves in a manner contrary to Toll’s Code of Practice and the Toll Workplace Behaviour Policy. Both applied for unfair dismissal.

It was alleged by Mr A, a co-worker, that over a period of time he was subjected to harassment-type behaviour on the part of Mr R and Mr Y. This behaviour included an incident where Mr R and Mr Y pushed Mr A back into a van and backwards onto some bank bags. It was then alleged that one of the co-workers said words to the effect that: “he has two holes, so I’ll hold him while you take turns.” Mr A claimed that the applicants conveyed the impression to him that they were about to initiate a sexual assault, and were restraining him for that purpose. The alleged behaviour also included Mr R and Mr Y along with other co-workers, touching Mr A on his posterior as they passed him and making provocative statements to him such as, “how are you going sweetheart?” Mr A also became aware that his co-workers were referring to him “FONC,” which an acronym for the term, “Friend of No C***.”

Mr A exhibited sensitivity to being touched by males as a consequence of childhood abuse experiences which resulted in a psychological injury, so he claimed. Mr A claimed that had explained his situation to others in his workplace including Mr R and Mr Y (although both deny that Mr A ever disclosed this issue to them).

Mr A raised his concerns with the leading hand Mr Ryan, who informed Mr A that it might be best if he left the issue alone. Mr A thereafter started to take time off from work. But even when he returned he discovered that his co-workers were referring to him as a “FONC.” Mr A received a show cause letter in respect of his absences and his interactions with a supervisor. At this point in time Mr A was counseled by the employee assistance provider to make a formal complaint to his employer about the incidents which had been occurring at work.

Toll conducted an investigation and found that the conduct as alleged by Mr A occurred (on the balance of probability) in the terms on which Mr A had asserted. Toll contended that the behaviour was contrary to Toll’s Code of Practice and the Toll Workplace Behaviour Policy. The Policy requirements included: […]
“never discriminate, harass, verbally abuse, bully, vilify, victimise or act or threaten to act violently towards another employee or anyone else.”

The FWC found that it appeared “on the balance of probability that Mr R and Mr Y both participated knowingly in a workplace culture which acted to discriminate against Mr A on the basis of his particular, explicit psychological vulnerabilities.” Further the FWC noted that “both Mr Y and Mr R ought reasonably to have appreciated that their conduct was counter-productive to their employer’s business objectives, and contributed to the creation of an unsafe workplace in so far as the conduct was personally, socially and psychologically damaging to Mr A.” The dismissal was not held to be harsh, unjust or unreasonable.