What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 11 – 18 December 2016

Alleged Discrimination of Female Cricketers
Negotiations between the Australian Cricketers’ Association and Cricket Australia have raised a number of questions relating to sex discrimination within the sport. In particular, the Australian Cricketers’ Association has questioned the legality of requiring female cricketers to sign a contract stating that they are not pregnant. The relevant clause requires a female cricketer to “warrant that, to the best of her knowledge, she is not pregnant as at the date of signing this Contract and undertakes that upon becoming aware that she is pregnant, she will notify the details of the pregnancy […] as soon as is reasonably practicable.” Further, female cricketers are contractually required to behave in a “courteous” and “sporting manner,” a requirement that is not imposed upon male cricketers.

The Chair of the Centre for Gender Economics and Innovation, Suzanne Moore indicated that the inclusion of such a clause was discriminatory, “unless they are going to ask men the same question or ask men if their partner is pregnant or likely to have a child.” Cricket Australia’s Executive General Manager of team performance Pat Howard has stated that “our only interest in whether one of our women players is pregnant is to ensure the health of her and her baby, and we have strict rules around medical confidentiality.” Cricket Australia’s Chief Executive James Sutherland has insisted that this clause does not bar a pregnant woman from playing, rather ensures that the “health and safety of employees, women and their babies” comes first.

As a consequence of these allegations The Fair Work Ombudsman has asked Cricket Australia to clarify their policies on pregnancy amid allegations of discrimination. Cricket Australia will send the Fair Work Ombudsman the terms and conditions and other details of female cricketers’ contracts on Monday morning and standby for a response. Cricket Australia has conceded that they are currently in the process of conducting a thorough review of their policies and contracts relating to pregnancy, maternity leave and carer support.

Circumstances in which an Employer Can Request an Employee Attend a Medical Practitioner
In the case of Cole v DQ Australia Pty Ltd [2016] FWC 1166, Mr Cole had been employed full time as a packer for PQ Australia for four years when PQ Australia began to have concerns that he was not working effectively with his co-workers and “did not seem to be coping well at work.” On 24 June 2015 Mr Cole was advised that he could not return to work until he had attended a medical examination to be completed by a doctor nominated by PQ Australia. Mr Cole was advised that this was not disciplinary action and that PQ Australia had not concluded that he had engaged in any wrong doing but that PQ Australia was concerned that he “was having problems from time to time maintaining an effective working relationship with some of [his] work colleagues.” A medical appointment was arranged by PQ Australia with Dr Baynes for 2 July 2015. Mr Cole failed to attend the medical appointment and was stood down without pay. On 15 July 2015 Mr Cole was given notice that failure to respond to the letter and confirm that he was willing to attend a medical assessment by a practitioner selected by the company could lead to his employment being terminated. On 22 July 2015 Mr Cole’s employment was terminated. The reasons given were the failure to comply with the direction to attend an independent medical examination and failure to comply with the direction to only communicate with relevant personnel regarding this issue.

In determining whether it was reasonable for PQ to require Mr Cole to attend a medical examination, the FWC acknowledged “an employer may have the right, depending upon the circumstances, to require a medical examination where the employer has concerns that an employee cannot perform the inherent requirements of the job.” The FWC provided guidance as to when it is reasonable to require an independent medical examination before an employee can return to work. When facing this issue, an employer should consider:
(a) whether there is a genuine indication of the need for the medical examination;
(b) whether medical information has been provided that explains absences and demonstrates that the employee is fit for work;
(c) whether the industry or workplace is inherently dangerous;
(d) whether there are legitimate concerns that the employee’s illness or injury would impact on others in the workplace;
(e) whether the medical practitioner and the employee have been informed of the issues of concern which relate to the performance of the inherent requirements of the position; and
(f) whether the medical examination is aimed at determining, independently, whether the employee is fit for work.

In the circumstances of this case, the Commission found that it was not reasonable to direct Mr Cole to attend a medical examination. In particular, the Commission noted that there was no genuine need for a medical examination as Mr Cole had not taken any prolonged or frequent absences from work, nor was there any reasonable basis to assume that Mr Cole had any illness that related to his ability to perform the inherent requirements of the job. The FWC stated, “the fact that Mr Cole disclosed that he was suffering from depression and claimed that he was being victimised and unfairly treated because of that does not provide a reasonable basis to assume that he was incapable of performing the inherent requirements of the job. Absent other evidence, there is no reason to conclude that a person is incapable of performing work as a packer whilst suffering from a depressive illness particularly when the employer is aware that the person is receiving treatment for the illness from a medical practitioner.”

The FWC concluded that there was not a valid reason for termination. Accordingly the FWC determined that the termination was unfair because it was harsh and unjust.

Author Interviews Women about Rural Work Life and Finds that 73% Were Sexually Harassed
Dr Skye Saunders, an author, has interviewed 107 women about their workplace experiences in rural and remote workplaces as the background for a novel. Dr Saunders said that 73% of women reported having been sexually harassed in their rural workplaces. Of those women, 63% reported that it did not worry them, believing that women should toughen up because it comes with the territory.

SA Police Force Report Shows Sex Discrimination and Sexual Harassment Rife
A report released by the Equal Opportunity Commission — Sex Discrimination, Sexual Harassment and Predatory Behaviour in the South Australian Police Force – has indicated that sex discrimination and sexual harassment is commonplace within the South Australian Police Force (SAPOL). The investigation received survey responses from almost 2,000 people, around 30% of SAPOL. The report found that discriminatory and harassing behaviour was seen as being “acceptable and normalised”.

Of the 2,000 respondents, 45% reported having personally experienced sex discrimination. The responses indicated that women were the most likely group to be experience sexual discrimination, followed by “anyone else that doesn’t fit the white macho male stereotype” including lesbian, gay and bi-sexual women or men. Six hundred respondents (36%) reported having been subject to sexual harassment while employed with SAPOL. Of those who indicated when the sexual harassment occurred, around half (46%) reported that it happened within the past five years. The report indicated sexual harassment was experienced across all levels of the organization with targets more likely to be women. Whilst the rate of workplace sexual harassment reported by women in SAPOL was similar to the level of workplace sexual harassment reported by women in the general workforce, the reported incidence of predatory behaviour (ie. the misuse of authority or influence to exploit others for sexual or other personal gratification) in SAPOL was 21% higher than the general population figure (49% to 28%).

The report indicated that 41 sexual harassment complaints were made to the SA Police Equity and Diversity Unit between July 2010 and May 2016 of which 23 were proven. An additional twenty-four, sex discrimination or harassment claims were lodged with the Internal Investigation Section over the same period, of which 8 were proven. The behaviour upon which the substantiated claims were made included pulling on an employee’s nipple, serial bullying and the trivialization of rape.

The report has made 38 recommendations, including an overhaul of the SAPOL complaints handling processes, the establishment of a gender equality strategy and more training for SAPOL staff on sex discrimination and harassment. The recommendations that are to be implemented immediately include: the establishment of a Restorative Engagement Program to allow people who have been harmed previously to safely share their story with trained senior SAPOL Officers and seek acknowledgement and an apology; and the establishment of a SAFE Space which staff can access directly for confidential, unlimited support.

Dismissal Upheld Where Employee Repeatedly Swore,Coupled with Employer’s Good Management of Complaint Process
In the case of Zamojski v Sydney Trains [2016] FWC 8758, Leon Zamojski applied for an unfair dismissal remedy against his former employer, Sydney Trains. Before his dismissal, Mr Zamojski operated a front-end loader at the Respondent’s Ballast Recycling Centre.

In February 2015, Sydney Trains conducted an investigation and determined that Mr Zamojski had called Mr Bayad, his immediate manager, a “c**t” and a “f***wit” as well as referring to a female colleague as “that b**ch.” It further found that Mr Zamojski had attempted to physically intimidate Mr Bayad. The respondent indicated in a letter dated 15 June 2015 that it proposed to dismiss Mr Zamojski because of this misconduct, but reviewed this decision following the Australian Rail, Tram and Bus Industry Union’s (RBTU) response to that letter on his behalf. It decided instead to suspend his employment for four weeks without pay and issue him with a final warning.

On 23 July 2015, Sydney Trains notified Mr Zamojski that it would be investigating misconduct he allegedly engaged in on 10 and 11 June 2015. The RBTU responded on Mr Zamojski’s behalf, denying the misconduct. It was alleged that Mr Zamojski was involved in two incidents. The first incident, which allegedly occurred on 10 June 2015, involved Mr Zamojski failing to follow a reasonable and lawful direction from My Bayad, failing to treat Mr Bayad with respect by making inappropriate comments including calling Mr Bayad “lowlife” and a “useless manager” and failing to act in a professional and reasonable manner by driving off in a front-end loader in an unsafe manner, causing dust and debris to be thrown into the air and strike Mr Bayad. The second incident, which allegedly occurred on 11 June 2015 involved Mr Zamojski refused to take part in a counselling session over his failure to follow the reasonable and lawful direction given to him by Mr Bayad on 10 June 2015 and failed to treat Mr Bayad with respect by making inappropriate comments including calling Mr Bayad a “lowlife” and a “useless manager.”

On 29 September 2015, Sydney Trains notified Mr Zamojski that it considered the misconduct allegations had been proven and that it had made a preliminary decision to terminate his employment. That letter invited Mr Zamojski to provide a response within 14 days, which he did (via the RTBU) on 15 October 2015. On 11 November 2015, Sydney Trains affirmed its decision to dismiss Mr Zamojski. The FWC determined that Mr Zamojski’s conduct provided Sydney Trains with a valid reason for dismissal. The FWC concluded that Mr Zamojski had not been unfairly dismissed.

Employee Fired for Falsifying Records Related to an Investigation for Behaviour that would not have Constituted a Valid Reason for Dismissal
Joseph Sleiman (in the case of Sleiman v Metro Trains Melbourne [2016] FWC 8514) applied for an unfair dismissal remedy against Metro Trains Melbourne. Mr Sleiman’s employment was terminated because it was said he: purposely left the site to avoid undertaking drug and alcohol testing; did not advise his supervisor or manager that he was leaving the site; after leaving the site, text messaged his supervisor that he would be absent from work which was contrary to instructions; and did not roster off. In relation to these allegations, the FWC determined that there was no evidence that Mr Sleiman: was told that drug and alcohol testing was to take place, was directed to attend drug and alcohol testing or saw other workers lining up to be tested. The FWC was not satisfied that Mr Sleiman had left the site when he phoned his supervisor. On the evidence, it was clear however, that Mr Sleiman failed to clock off, contrary to policy.

The second allegation raised was that Mr Sleiman falsified information and lied during the investigation in relation to text messages and phone calls in an attempt to substantiate his version of events. The FWC was satisifed that, on the balance of probabilities, Mr Sleiman provided falsified records to support his version of events. The FWC found that this dishonest conduct constituted a valid reason for the termination of Mr Sleiman’s employment. Accordingly, the FWC dismissed Mr Sleiman’s application for an unfair dismissal remedy.