What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 12 – 18 October 2015

A McCain Food employee has won his job back after originally being sacked for being involved in an altercation in the workplace. Mr Bridges was successful in his unfair dismissal claim before the FWC and argued he was fired for defending himself against an aggressive co-worker.

The Commission heard that the electrician was approached by his manager who was verbally abusive and aggressive to him and in response he kept a hold of the other man’s clothing. The other employee lost his job as well.

The Commission held that while there was a valid reason for termination (the behaviour was deemed inappropriate but not bullying as it was a one off behaviour), their were other factors (such as the employees unblemished 21 years employment with the company) that made the penalty harsh.

Reinstatement was ordered due to his age, living in a rural area and he had more than 100 signatures of employees at the workplace supporting his reinstatement. Mr Bridges was not awarded any remuneration for the loss of 5 weeks’ pay; this was viewed as a sufficient penalty for being involved in the workplace scuffle.

An interesting case about workplace violence, that even though the employee did not strike his manager his actions of restraining his manager was sufficient to constitute a valid reason for termination. A reminder that an employer has to look at all the factors that constitute whether a termination is harsh and not just the incident complained of.

A Bill that proposes to amend the Racial Discrimination Act looks set to fail. The Bill would remove the words “offend” and “insult” from section 18C and would water down the affect of the Act, leaving only the words ‘humiliate’ and ‘intimidate’.

Australia Post must improve its workforce gender balance to better serve its largest customer group, women buying items online. Australia Post has committed to promoting more women into its leadership team. The company’s action plan shows it has made progress in reducing its gender gap through support and investment in female talent development programs. Women make up 39% of all Australia Post employees.

A former sales executive at an online travel agency has lost her unfair dismissal claim. Ms Reale filed the claim after she was denied a request for flexible working arrangements following maternity leave. Reale left for maternity leave in 2011 and then took several subsequent periods of leave to take care of her children. When she was due to return to work she sent an email to her employer indicating she wished to trial a temporary part time role. Her employer responded by saying there were no part-time positions available. Reale argued her employment agreement included a provision that allowed an employee entitled to parental leave to return from a period of leave on a part-time basis until the child reaches school age. The employer stated it had had a good look at whether it would work for the whole organisation for Ms Real to return part-time and they indicated it could not fulfil the request but she still had a full time role if she wanted it. Reale sent an email saying she felt she had been forced to resign and later submitted an unfair dismissal application. Commissioner Hamberger said he was satisfied there had been “reasonable business grounds” for refusing Reale’s request and therefore she had not been unfairly dismissed.

This case highlights that an employer does not have to provide a part-time position for an employee post maternity leave but an employer does have to make a real assessment as to whether, based on reasonable business grounds it would work for the employer for the employee to work part-time. The Commission accepted that the employer had done a real assessment and it was not viable for the employee to return part-time.