What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 11 March 2024 – 17 March 2024

Custody Officer at a Justice Complex Unfairly Dismissed

The Fair Work Commission heard an unfair dismissal case in relation to a worker who was dismissed from his position as a custody officer at a justice complex (court). The worker was involved in an incident with a Person in Custody (PIC), during which the worker head-butted the glass portion of the PIC’s cell door. Following an investigation into the worker’s behaviour, the employer terminated his employment.

The worker argued that his termination was unfair, citing factors such as insufficient support from the employer, understaffing, and his admission of the conduct as mitigating factors. The worker and his colleagues testified about the challenging work environment at the FJC, including understaffing, high turnover of experienced staff, and the need to deal with difficult Persons of Interest (POIs) and PICs.

The FWC recognised the importance of psychosocial health in the workplace, particularly in environments like the FJC where employees are routinely subjected to abuse and the underlying threat of physical violence from PICs and POIs. The Commissioner said, “it may be unfair to apply the standards expected of angels to mere humans” in light of the aggressive and threatening behaviours the custody officers are subjected to on a daily basis and the court emphasized the need for a nuanced view of punishment for employees who break the rules in such challenging circumstances.

Despite the valid reason for termination and the employer’s adherence to procedural fairness, the FWC found that the worker’s dismissal was harsh in the circumstances. The gravity of the misconduct, taken together with the mitigating circumstances, of the worker’s lack of prior history of similar behaviour, evidence of stress and frustration due to perceived understaffing, and the fact that he did not commit an assault on a person, led the FWC to conclude that termination of the worker’s employment was “an excessive punishment.”

Bullying and Sexual Harassment in the WA Mining Sector Remain High

Burnout and sexual harassment instances remain rampant in Western Australia’s mining sector as the government ensures that their elimination remains a priority.

The Insights from the Worker Survey and Interviews report, the fourth one in the landmark study into mental health and workplace culture across WA’s mining sector, was released this week. It surveyed 2,550 WA mining workers and interviewed 60 to understand their experiences while at work.

Five to 41% of female mining workers said they experienced behaviour of sexist and sexual hostility, sometimes, often, or very often in the past 12 months. It was also the case for three to 11% of men.
The most common behaviour observed for female mining workers are:
• Being put down or condescended to (41%)
• Offensive sexist remarks (34%)

For men, the most common behaviour that they reported is receiving crude and offensive sexual remarks (11%). In terms of unwanted sexual attention and sexual coercion, both women (3-19%) and men (1-8%) said they experienced it sometimes, often, or very often in the past 12 months.

Independent Review to Ensure Queensland’s Hospital Staff are Safe at Work

The Queensland Government has today announced a comprehensive review into the safety and wellbeing of frontline staff in Queensland’s hospitals.

Led by Australia’s longest-serving Sex Discrimination Commissioner, Elizabeth Broderick AO, and her team, the review will prioritise the wellbeing of Queensland Health frontline workers.

The review will consider the policies and procedures, and their application, in Queensland Health and Hospital and Health Services to ensure they are fit for purpose. This includes ongoing work to educate staff on the government-wide preventing and responding to workplace sexual harassment directive, and how to comply with the Positive Duty requirements under the Sex Discrimination Act 1984 (Cth).

The Director-General of Queensland Health also released an updated health, Safety and Wellbeing policy last month, as well as the Queensland Health Workforce Mental Health and Wellbeing Framework in October last year that aims to prevent issues including sexual harassment. The independent review will be the next logical step in ensuring we foster safer, more supportive workplaces for Queensland Health’s frontline workforce.

Businesses to get help to stamp out sexual harassment

Business leaders are set to be better equipped to deal with sexual harassment with new figures showing 90 per cent believe it’s a serious issue and tackling it needs to be a priority.

More than four million people have experienced sexual harassment at work in the past five years, with incidents higher in male-dominated sectors like construction, retail and mining, violence prevention organisation Our Watch said.

Bosses will be supported to meet new regulations that require businesses to actively take steps to stamp out sexual harassment at work under the Lead the Change campaign launched on Monday.

Free Authorised Assist Service for Office Sexual Harassment has been Launched

A free assist service for office sexual harassment has been launched in Victoria, with appointments opening at Dandenong Library.

South-East Monash Authorized Service lawyer Rohan Sethi is on the library one morning per week at no cost for legal appointments. It’s a part of the SMLS’s Advocacy Towards Sexual Harassment (AASH) program to fight under-reporting of office sexual harassment.

“Fewer than one in 5 people (18 per cent) who experience sexual harassment within the office make a report, Rohan says. Only 4 per cent see a lawyer. One in three people (33%) – together with 41 per cent of women – say they’ve experienced sexual harassment at work within the last 5 years”, lawyer Rohan Sethi said.

“Younger women from a culturally diverse background are significantly at higher risk. Women of CALD backgrounds report experiencing sexual harassment at twice the rate of the people surveyed”.

Worker Unaware of his Termination Due to the Notice Being Diverted to his Spam Folder

A worker argued that his claim for unfair dismissal should not be considered “late” because he did not receive proper notification and pursued redress for an alleged unfair dismissal against his employer, Dig Dig Demolition Pty Ltd, where he started working as a truck driver in June 2022.

On July 4, 2023, HR Gurus initiated an external investigation into an OHS incident involving the worker and simultaneously started an examination of a bullying complaint filed by the worker. The investigation concluded that the worker was involved in the OHS incident and had engaged in unsafe conduct. Disputing the findings, the worker expressed concerns and threatened legal action if a reassessment was not conducted.

On September 26, 2023, the employer, through one “Mr. Lynch,” notified the worker of the outcomes of the investigation via email. The worker was given the opportunity to provide additional information regarding the OHS incident by October 4, 2023, with a “show cause” letter attached, indicating potential summary termination for gross misconduct. The worker neither attended the show cause meeting nor responded in writing. On October 9, 2023, Lynch sent a termination letter via email, summarily dismissing the worker. The worker claimed that the emails dated September 26, 2023, and the termination email on October 9, 2023, were routed to his junk mail.

The FWC said that the worker gave “uncontested evidence that he was not expecting correspondence regarding the investigation as he had communicated to [the office administrator that] he was unable to participate further in the investigation relating to the OHS incident.” Additionally, it said that the worker “was off work for an injury and on medication which impacted his mental capacity.”

“Given the [worker] was away from work for an injury, once the [worker] had failed to show up for the show cause meeting or respond in writing, it was incumbent on the employer to take steps – such as phoning [him] – to ensure he had received the show cause letter, before terminating him by email correspondence,” the FWC said.

“If the [worker] had been alerted to the show cause letter by a phone call, even if the termination letter had gone to the junk folder, it is unlikely he would be able to sustain an argument that he had no reasonable opportunity to become aware of the termination.”

Report Explores Persistent Discrimination Faced by Pregnant Women

A report exploring the working conditions of pregnant employees and parents has been released today, calling for major changes in Australian workplaces to combat the persistent discrimination faced by pregnant women.

This is the first Australian National Review into work-related discrimination, disadvantage and bias among pregnant and parent workers since 2014. Over 1200 Australian pregnant and parent workers responded to the survey, with 95 per cent identifying as female.

The latest Australian National Review follows a 2023 study which found that 30 years after it was outlawed in Australia, workplace discrimination is still rife for pregnant women and parents.

More than 60 per cent of new mothers returning to work said their opinions are often ignored, they feel excluded and are given unmanageable workloads. Almost one in five women returning from maternity leave were refused requests to work flexible hours or from home, and 25 per cent of women said their workplace did not provide appropriate breastfeeding facilities.

Despite being a legal requirement, 30 per cent of pregnant women didn’t receive information about their upcoming leave entitlements. While on leave, 38 per cent reported negative or offensive remarks for taking time off work to care for a sick child. And 13 per cent were treated so badly they had no option but to resign.

Australia Links Gender Equality Targets to Government Contracts

Big businesses across Australia that want to win government contracts will soon need to meet various gender equality targets in their workplaces, according to Minister for Women Katy Gallagher.

We’ll use the Workplace Gender Equality reporting framework to make it a rule that, to win government work, businesses with 500 or more employees must commit to targets to improve gender equality in their workplaces,” the minister said.

According to the minister, the targets will focus on:
• Gender makeup of their boards and the workforce
• Equal pay
• Flexible working arrangements
• Workplace consultation on gender equality
• Efforts to prevent and address sexual harassment

Gallagher made the announcement at the launch of the country’s first national strategy to achieve gender equality on International Women’s Day last week.